DEVON v. KOLPOTOSKY
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 4/28/11. 5/4/11 ENTERED AND COPIES MAILED TO PRO SE.(lvj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHA P. DEVON,
Petitioner
v.
KOLPOTOSKY, et al.,
Respondents
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MISCELLANEOUS ACTION
NO. 08-mc-00024
(93-cr-00138)
MEMORANDUM
STENGEL, J.
April 28, 2011
The petitioner has filed a motion for modification of sentence pursuant to 18
U.S.C. § 3582(c)(2), based on an amendment to the Sentencing Guidelines which lowered
the base offense levels applicable to crack cocaine offenses. The government filed a
response arguing that the petitioner is not eligible for a reduction because the amendment
does not reduce his Sentencing Guidelines range. For the following reasons, I will deny
the motion in its entirety.
I. BACKGROUND
In March 1993, Mr. Devon was charged in a multi-defendant indictment with
various offenses including: conspiracy to distribute more than fifty grams of crack
cocaine (Count 1); racketeering (Count 2); possession of marijuana with intent to
distribute (Count 7); use of a firearm in furtherance of drug trafficking activity (Count 8);
aggravated assault in aid of racketeering (Count 13); and two counts of murder in aid of
racketeering (Counts 15 and 17). On November 18, 1993, a jury found him guilty of all
counts.
The Pre-Sentencing Report described Mr. Devon’s offenses in detail, and indicated
that Mr. Devon was a member of the Mark Anthony Brown Organization, which
distributed illegal substances in several area counties during the1980’s and 1990’s. This
organization used violence as a means of achieving its unlawful objectives, including
physical threats, murder, and arson. In addition to his role as a street level manager,
enforcer, and seller for the organization, Mr. Devon was involved in the murders of two
individuals, which were carried out to further the drug conspiracy. He also was involved
in burning the body of one of the victims.
In preparing the Pre-Sentencing Report, the Probation Department determined that
during the period that Mr. Devon participated in the conspiracy, the organization
distributed approximately one-half kilogram of crack a day, and he was thus responsible
for the distribution of more than fifteen kilograms of crack. Under the Sentencing
Guidelines in effect at the time of sentencing, a quantity of fifteen kilograms or more of
crack cocaine carried a base offense level of 42.1 The base offense level was increased by
two levels pursuant to § 2D1.1(b)(1) of the Guidelines because Mr. Devon possessed a
firearm during the conspiracy, and by an additional two levels pursuant to § 3B1.1(c)
because he was a manager in the organization. His adjusted offense level for the drug
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Several months after sentencing, Amendment 505 to the Sentencing Guidelines became
effective and made retroactive by the Sentencing Commission. This Amendment reduced the top
base offense level to 38, which applied to all quantities of crack cocaine in excess of 1.5
kilograms. Even if Mr. Devon had filed a motion for relief pursuant to Amendment 505, he
would have been unsuccessful because his guideline range would have remained life
imprisonment.
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offenses reached a level of 46. After combining that with the offense levels of the
remaining counts pursuant to the grouping guidelines, Mr. Devon’s total adjusted offense
level was 49. See U.S.S.G. §§ 3D1.1 through 3D1.4. With a Criminal History Category
of I and an offense level of 49, Mr. Devon’s Sentencing Guideline range was life
imprisonment. He was also subject to a five-year mandatory consecutive sentence for his
use of a firearm in furtherance of the drug trafficking activity.
At the sentencing held on June 6, 1994, the late Honorable James McGirr Kelly
adopted the Guidelines calculation set forth in the Pre-Sentencing Report. On Counts
One, Two, Thirteen, Fifteen, and Seventeen, Judge Kelly sentenced Mr. Devon to life
imprisonment to run concurrently with the life sentence he was serving in the
Commonwealth of Pennsylvania. On Count Seven, the judge sentenced Mr. Devon to
imprisonment for a term of twenty years to run concurrently with the above sentences.
On Count Eight, the judge imposed a term of five years’ imprisonment to run
consecutively with the above sentences. Finally, the judge ordered that if Mr. Devon
were ever released from custody, he must serve a term of five years of supervised release.
II. DISCUSSION
Mr. Devon seeks relief under 18 U.S.C. § 3582(c)(2), which provides:
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), upon motion of the defendant
or the Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
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considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.
Section 1B1.10 of the Sentencing Guidelines identifies which amendments may be
applied retroactively, and articulates the proper procedure for applying an amendment to a
final sentence. Section 1B1.10(a), which became effective on March 3, 2008, provides:
(1)
In General -- In a case in which a defendant is serving a term
of imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (c)
below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2). As
required by 18 U.S.C. § 3582(c)(2), any such reduction in the
defendant’s term of imprisonment shall be consistent with this
policy statement.
(2)
Exclusions -- A reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. § 3582(c)(2) if:
(A)
(B)
(3)
none of the amendments listed in subsection (c)
is applicable to the defendant; or
an amendment listed in subsection (c) does not
have the effect of lowering the defendant’s
applicable guideline range.
Limitation -- Consistent with subsection (b), proceedings
under 18 U.S.C. § 3582(c)(2) and this policy statement do not
constitute a full re-sentencing of the defendant.
Here, the Amendment in question is Amendment 706 which became effective on
November 1, 2007. This Amendment reduced the base offense level for most crack
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cocaine offenses by two levels. On December 11, 2007, the Sentencing Commission
added Amendment 706 to the list of Amendments stated in Section 1B1.10(c) which may
be applied retroactively.
It is important to stress that a defendant’s sentence may only be reduced when he
was “sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” See 18 U.S.C. § 3582(c)(2).
Further, under the statute, a reduction is allowed only when “such a reduction is
consistent with the applicable policy statements issued by the Sentencing Commission.”
The Sentencing Guidelines provide that: “A reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and therefore is not authorized
under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed in subsection (c) does not have
the effect of lowering the defendant’s applicable guideline range.” See U.S.S.G. §
1B1.10 (a)(2)(B).
Because Amendment 706 does not lower Mr. Devon’s guideline range, a reduction
in his sentence is not authorized. The amended guideline applies a base offense level of
38 to amounts in excess of 4.5 kilograms of crack cocaine. With the addition of two
levels for the gun possession pursuant to § 2D1.1(b)(1) of the Guidelines, and two more
levels for his managerial role in the organization pursuant to § 3B1.1(c), Mr. Devon’s
adjusted offense level becomes 42 for the drug offenses. The grouping guidelines
provide for grouping together all counts involving the same harm into separate groups,
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see § 3D1.2; then taking the offense level of the group with the highest offense level, and
increasing it by one unit for each group that is equally serious or from one to four levels
less serious, disregarding any group that is nine or more levels less serious than the group
with the highest offense level, see § 3D1.4. Here, the calculation brings Mr. Devon’s
total adjusted offense level to 46.2 When combined with a Criminal History Category of
I, Mr. Devon’s Sentencing Guideline range remains life imprisonment. Accordingly,
because Amendment 706 does not lower Mr. Devon’s guideline range, he is not entitled
to a sentence reduction. See 18 U.S.C. § 3582(c)(2). I will deny his motion.
An appropriate Order follows.
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In this case, the RICO and murder counts have the highest adjusted offense level of 43.
Three levels are added to 43, i.e., one level for the drug offenses (offense level 42), and two
levels for the two murder counts (offense level 43), all of which are equally serious groups. The
offense level of 21 for the assault is disregarded, being nine or more levels less serious than the
offense level for the RICO and murder counts. See § 3D1.4(c). Accordingly, Mr. Devon’s total
adjusted offense level is 46.
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