United States v. Clipper

• Decision Date: 15 April 2016
• Docket Number: Criminal Action No. 96-291 (BAH)
• Citation: 179 F.Supp.3d 110
• Parties: United States of America, v. Terry Terrell Clipper, Defendant.
• Court: U.S. District Court — District of Columbia

179 F.Supp.3d 110

United States of America,

v.Terry Terrell Clipper, Defendant.

Criminal Action No. 96-291 (BAH)

United States District Court, District of Columbia.

Signed April 15, 2016

Barry Wiegand, U.S. Attorney's Office, Washington, DC, for Plaintiff.

Lisa B. Wright, Federal Public Defender, Washington, DC, for Defendant.

Terry Terrell Clipper, Welch, WV, pro se.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The defendant Terry Clipper has served about nineteen years of his over twenty-one year sentence on his conviction by a jury for unlawful possession with intent to distribute five grams or more of crack cocaine and several gun-related charges. He has filed, proceeding pro se , two related motions for a sentence reduction, see Def.'s Mot. Reduction of Sentence or a Downward Departure under 4A1.3 and 3582(c)(2) (“Def.'s Reduc. Mot.”), ECF No. 77; Def.'s Suppl. Mot. for a Reduce[d] Sentence Pursuant to U.S.S.G. Retroactive Amendment(s) 706, 750, 782, or 1B1.10 (“Def.'s Suppl. Mot.”), ECF No. 83, and, as support for a sentence reduction, a motion for post-conviction DNA testing of narcotics evidence recovered from his vehicle following his arrest, see Def.'s Mot. Post-Conviction DNA Testing (“Defs.' DNA Mot.”), ECF No. 81. For the reasons set forth below, both motions are denied.

I. BACKGROUND

On July 19, 1996, the District of Columbia Metropolitan Police Department received calls that a person driving a blue Ford LTD fired shots into another car. Presentence Investigation Report (“PSR”) at 4¹ . The police responded and apprehended the defendant in the vicinity of the gunshots after he had fled on foot from his car, which was a blue Ford LTD. Id.; Govt.'s Opp'n to Def.'s Reduc. Mot. (“Govt.'s Reduc. Opp'n”) at 1, ECF No. 80. The police found inside the defendant's car a “semi-automatic pistol with one round in the chamber,” “a white rock-like substance that later field tested positive for cocaine base, and a bag of money, totaling $3,714.” PSR at 4.

On March 13, 1997, following a jury trial, the defendant Clipper was convicted of all charges in a six-count Indictment, namely: (1) unlawful possession with intent to distribute five grams or more of crack cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) ; (2) unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ; (3) unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ; (4) carrying a pistol without a license, in violation of D.C. Code § 22-3204(a) ; (5) possession of unregistered firearm, in violation of D.C. Code § 22–231(a); and (6) possession of unregistered ammunition, in violation of D.C. Code § 6–2361(3). Judgment at 1, ECF No. 25. The defendant was subsequently sentenced to 360 months of imprisonment followed by eight years of supervised release, id. at 2–3, based on a finding that the defendant was a career offender under U.S.S.G. § 4B1.1 due to two prior felony convictions, PSR at 11.

On June 25, 1999, the defendant moved to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. Def.'s Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Def.'s 2255 Mot.”), ECF No. 54. The defendant and the government reached an agreed upon disposition of the defendant's motion, and jointly moved to vacate the defendant's conviction for unlawful possession of ammunition by a convicted felon, as duplicative of his conviction for unlawful possession of a firearm by a convicted felon, and to amend the defendant's 360-month sentence to 262 months. Joint Mot. to Amend Judgment on Agreed Disposition of Def.'s Mot. to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“Joint 2255 Stipulation”) at 2, ECF No. 74. The joint motion was granted, resulting in vacatur of the defendant's conviction for unlawful possession of ammunition by convicted felon, in violation of 18 U.S.C. § 922(g)(1), with a concomitant reduction of the defendant's sentence to 262 months, with credit for time served. Order at 1, dated Oct. 17, 2002, ECF No. 75.

Twelve years later, on September 19, 2014, the defendant once again moved for reduction of his sentence or a downward departure, seeking this relief pursuant to U.S.S.G. § 4A1.3 and 18 U.S.C. § 3582(c)(2), see Def.'s Reduc. Mot., which motion was supplemented on October 20, 2014, see Def.'s Suppl. Mot. As support for this motion, the defendant states that “[f]rom the time of defendant's re-sentence until now, defendant has obtained an extraordinary prison history in rehabilitating himself, in the industry work, and programming, while maintaining good conduct, which easily qualify defendant for a post-rehabilitation or post-conviction and rehabilitation sentence in light of the Supreme Court's decision in Pepper v. United States, [562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) ]....” Def.'s Reply in Opp'n to Gov't's Opp'n to Def.'s Reduc. Mot. (“Def's Reply”), at 1, ECF No. 82. Also, on October 20, 2014, the defendant filed a motion, under the Innocence Protection Act of 2004 (“IPA”), 18 U.S.C. § 3600, for an order requiring the post-conviction DNA testing of six packets of drugs recovered from his car. See Def.'s DNA Mot. Specifically, the defendant seeks comparisons of his DNA to that found on any saliva, sweat, hair samples, skin tissue, and fingerprints found on the packets of drugs. Id. ¶ 3. According to the defendant, “[a]ll biological material evidence retrieved from his car ... [will] prove that [he] is actually innocent of his drug conviction” and will support his pending motion for a sentence reduction. Id . Both motions are ripe for resolution.²

II. DISCUSSION

The defendant's two pending motions request a second reduction in his sentence and post-conviction DNA testing of the drugs found in his car. Each motion is discussed seriatim below.

A. Motion to Reduce Sentence

The defendant seeks, pursuant to 18 U.S.C. § 3582(c), a further reduction in his sentence, but none of the grounds he describes provide a basis for relief.³

Section 3582(c) permits modification of an imposed term of imprisonment only in the following limited circumstances: (1) upon motion of the Director of the Bureau of Prisons, 18 U.S.C. § 3582(c)(1)(A) ; (2) as “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedures,” id. § 3582(c)(1)(B) ; and (3) “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 ... the court may reduce the term of imprisonment, after 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,” id. § 3582(c)(2). While the D.C. Circuit has made clear that “[d]istrict courts retain broad authority to control § 3582(c)(2) proceedings,” a “section 3582(c)(2) proceeding is not a “plenary resentencing proceeding,” nor is it “a license for the defendant to re-litigate his sentence wholesale or challenge previously adjudicated aspects of his conviction.” United States v. Wyche , 741 F.3d 1284, 1292 (D.C.Cir.2014) (internal quotations and citations omitted); see also United States v. Swangin , 726 F.3d 205, 207 (D.C.Cir.2013) (“Section 3582(c)(2)... ‘does not authorize a sentencing or resentencing proceeding’.... Rather, it ‘authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.’ ” (quoting Dillon v. United States , 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ).

Here, the defendant relies on the third prong of Section 3582(c)(2) for modification of his sentence, arguing that (1) when the defendant's sentence was reduced by joint motion in 2002, “the Court failed to consider all of the Defendant's post-conviction and sentence rehabilitation mitigation factors as stated in § 3553(a),” Def.'s Reduc. Mot. at 2; and (2) the defendant's “career offender status ‘over-represented’ Defendant's criminal history and offenses,” making him eligible for a downward departure from his criminal history category under U.S.S.G. § 4A1.3, id. at 5, and thereby allowing him to qualify for sentence reductions under three amendments made by the United States Sentencing Commission to the base offense level for crack cocaine offenses, Def.'s Suppl. Mot. at 1–2.⁴ Neither of the defendant's arguments present permissible grounds for further reduction of his sentence.

1. No Sentence Reduction is Permissible For Failure to Consider Post-Sentencing Rehabilitation At Re-Sentencing

The defendant relies principally on Pepper v. United States , 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), in arguing that his sentence should now be reduced because the sentencing judge did not properly consider “post-conviction and sentence rehabilitation mitigation factors” when the sentencing judge entered the stipulated agreement between the defendant and the government to reduce his sentence from 360 to 262 months of incarceration. Def.'s Reduc. Mot. at 2. This reliance is misplaced.

In Pepper, the Supreme Court held that “when a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation.” 562 U.S. at 481, 131 S.Ct. 1229. Pepper simply does not create additional authority for modifying a sentence. Another Judge on this Court recently rejected a similar request for reduction of a sentence “due to post-sentencing rehabilitation, relying on Pepper,” explaining that “Pepper allows a court to consider post-sentencing rehabilitation in imposing a new sentence after a remand for resentencing,” but absent a remand for resentencing, “the Court's power to modify a previously imposed sentence is narrowly limited. Neither 18 U.S.C. § 3582(c)(2) nor any other provision allows the Court to reopen an...