United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR COURT TO
EXERCISE SUPERVISORY POWER AND RECALL JUDGMENT DOCKET NO.
M. CHEN United States District Judge
Douglas Stepney moves to recall this Court's previous
judgment denying his motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Docket No. 2074
(“Motion”). Stepney asks this Court to exercise
its inherent supervisory power to recall its previous
judgment and reduce his sentence from 262 months to 240
months, the mandatory minimum sentence for his offenses. The
Court DENIES the motion.
2006, Douglas Stepney entered into a binding plea agreement
under Federal Rule of Civil Procedure 11(c)(1)(C). Motion,
Ex. A (Plea Agreement) at 8:17; Motion at 4:14. Stepney
agreed to plead guilty to drug conspiracy (distributing and
selling crack cocaine), aiding and abetting in a drive-by
shooting, and conspiracy to use and carry firearms, for which
he would receive a sentence of 23 years (276 months). Plea
Agreement at 1:26-28; 2:1-12. Under the terms of the Plea
Agreement, the adjusted offense level for the plea was 35.
Id. at 8. At sentencing, however, this Court adopted
a four-level Guideline enhancement not provided for in the
agreement for Stepney's leadership role in the drug
conspiracy. See Motion, Ex. E (“Transcript of
Sentencing”) at 6:17-9:24. This enhancement resulted in
a final adjusted offense level of 39. See
id. at 9:10. That level, in turn, with Criminal
History Category III, produced a guideline range of 324 to
405 months, but the Court nonetheless imposed the agreed upon
sentence of 276 months.Id. at 25:5-7, 25:18-22. During
sentencing, Stepney's defense counsel failed to object to
the “reframed” guideline calculations.
Id. at 9:17. Stepney did not directly appeal this
sentencing, as he had waived any right to appeal any aspect
of his sentence. Motion at 3:11; Plea Agreement at 6:16-18.
2007, Stepney filed a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255, in part on the ground
that he had been denied the effective assistance of counsel
when his defense counsel failed to challenge the
“leadership role” enhancement. Docket No. 1636.
This Court denied the motion, finding because Stepney had
received the agreed upon 23-year sentence, he could not have
been prejudiced by any alleged deficiency. Docket No. 1790 at
5. Both Judge Patel and the Ninth Circuit denied
Stepney's requests for a certificate of appealability
from the order denying his § 2255 motion. Docket Nos.
16, 2015, Stepney filed a motion under 18 U.S.C. §
3582(c)(2) for a sentence modification based on retroactive
Guideline Amendment 782. Docket No. 2066. Amendment 782
lowered the applicable Guideline Base Offense Level of
certain drug amounts under the Guideline Section 2D.1 drug
quantity table by two levels. See FCJ Federal
Sentencing Guidelines Manual Amendment 782. As applied to
Stepney's case, Amendment 782 reduced the base offense
level by two levels. Stepney's revised guideline range,
based on a final adjusted offense level of 37, Criminal
History III, was 262-327 months. The Court granted
Stepney's motion and reduced his sentence by 14 months to
262 months, the bottom of the revised range. Docket No. 2070.
December 21, 2016, Stepney filed the instant motion to recall
the Court's judgment denying his earlier motion under 28
U.S.C. § 2255. Docket No. 2074. Stepney argues that the
Court committed reversible procedural error at sentencing by
adopting an enhancement under the Sentencing Guidelines that
was not part of the plea agreement without giving him the
chance to withdraw from the agreement. Absent this error,
Stepney contends, he would have been eligible for a sentence
reduction beyond the one he already received as a result of a
retroactive Guidelines Amendment. Mr. Stepney argues that a
reversible procedural error occurred at sentencing with the
addition of the leadership enhancement, and that absent the
error, he would have been eligible for a larger reduction in
his sentence. Specifically, he argues that had the Court not
added the leadership enhancement, his adjusted offense level,
after the reduction to which he was entitled under Amendment
782, would have been only 33, with a corresponding guidelines
range of 168-210 months. Accordingly, Stepney asks this Court
to exercise its inherent supervisory power to recall its
previous judgment and reduce his sentence from 262 months to
240 months, the mandatory minimum sentence for his felony
a federal court may not resentence a defendant once a term
has been imposed. Dillon v. United States, 560 U.S.
817, 819 (2010). As the Ninth Circuit has explained,
“[d]istrict courts do not have inherent power to
resentence defendants at any time; their authority to do so
must flow from either the court of appeals mandate under 28
U.S.C. § 2106 (1982) or from Federal Rule of Criminal
Procedure 35.” United States v. Stump, 914
F.2d 170, 172 (9th Cir. 1990) (quotation marks
omitted). There are two exceptions to this general
rule relevant here: First, 18 U.S.C. § 3582(c)(2)
permits a court to reduce a sentence “in the case of a
defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C.
994(o).” See United States v. Hicks, 472 F.3d
1167, 1170 (9th Cir. 2007) abrogated by Dillon v. United
States, 560 U.S. 817 (2010). Second, a sentenced may be
modified where a defendant prevails in a motion to vacate,
set aside, or correct the sentence under 28 U.S.C. §
2255. Neither of these exceptions is applicable in this case.
28 U.S.C. Section 2255
as explained above, Stepney has already unsuccessfully
challenged his sentencing under § 2255. Under §
2255(h), a defendant may not bring a second or successive
§ 2255 motion without leave from the Court of Appeals.
Stepney has not obtained such leave, nor could he, as it is
only available upon a showing of newly discovered evidence
“sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty, ” or where there is “a new rule of
constitutional law, made retroactive to case on collateral
review by the Supreme Court.” 28 U.S.C. § 2255(h).
Here, Mr. Stepney was denied a certificate of appealability
for his first § 2255 motion, and has failed to obtain
leave of the Ninth Circuit for this motion. Opposition at
2:8-9. Accordingly, no relief is available under § 2255.
18 U.S.C. Section 3852(c)(2)
the Court resentence Stepney under 18 U.S.C. §
3582(c)(2). That provision permits a court to reduce a
sentence where a defendant was sentenced under a U.S.S.G.
range that has been subsequently lowered. As the Supreme
Court has explained, this authority is narrow. Section
3582(c)(2) “does not authorize a resentencing”,
but rather “permits a sentence reduction within the
narrow bounds established by the [Sentencing]
Commission.” Dillon v. United States, 560 U.S.
817, 831 (2010). Dillon squarely held that a Court
may not, under § 3582(c)(2), correct unrelated mistakes
in an original sentence. Id. That is precisely what
Stepney seeks here. Stepney already sought and obtained the
two-level reduction in his sentence available under §
3582(c)(2) for a sentence modification based on ...