United States v. Nori

• Decision Date: 01 June 2017
• Docket Number: Criminal Action No.: 14-0191 (RC).
• Citation: 254 F.Supp.3d 109
• Parties: UNITED STATES of America v. Matthew NORI, Defendant.
• Court: U.S. District Court — District of Columbia

254 F.Supp.3d 109

UNITED STATES of America

v.Matthew NORI, Defendant.

Criminal Action No.: 14-0191 (RC).

United States District Court, District of Columbia.

Signed June 1, 2017

Cassidy Kesler Pinegar, U.S. Attorney's Office, Washington, DC, for United States of America.

Donald B. Terrell, Donald B. Terrell Associates, Joel William Anders, Joel W. Anders, P.C., Washington, DC, for Matthew Nori.

MEMORANDUM OPINION

DENYING DEFENDANT'S MOTION TO REDUCE SENTENCE; DENYING DEFENDANT'S MOTION FOR TRANSCRIPTS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Defendant Matthew James Nori pleaded guilty to travel with intent to engage in illicit sexual conduct pursuant to 18 U.S.C. § 2423(b) and is currently serving a 60–month sentence of imprisonment. Mr. Nori now requests that this Court reduce his sentence. Because Mr. Nori's request is only cognizable under 18 U.S.C. § 3582(c), but does not qualify for any of the possible grounds of relief under that section, the Court denies Mr. Nori's motion.

II. BACKGROUND

The Court only briefly discusses the facts underlying Mr. Nori's sentence.¹ During several days in 2014, Mr. Nori engaged in sexually explicit electronic communication with an undercover police detective (UC). See generally Statement of Offense, ECF No. 17. These communications culminated in a plan for Mr. Nori to travel into the District in order to engage in sex acts with the UC's fictitious eight-year-old daughter. See generally Statement of Offense. The electronic communications included texts and emails, and contained graphic descriptions of sex acts with children. See generally Statement of Offense. Mr. Nori received images purporting to be pictures of the UC's fictitious daughter, Statement of Offense at 3–4, 6, and sent the UC images, including sexually explicit ones, Statement of Offense at 4. Mr. Nori and the UC discussed the sex acts they planned to perform with the UC's purported daughter, and arranged a time and location to meet. Statement of Offense at 5–8. At the appointed time, Mr. Nori arrived at the rendezvous and was arrested. Statement of Offense at 8. Mr. Nori had a small stuffed animal in a pink gift bag with him that he planned to give to the UC's purported daughter. Statement of Offense at 8–9.

After his arrest, Mr. Nori pleaded guilty to travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b). See generally Plea Agreement, ECF No. 16. Mr. Nori's offense level was 33, leading to a Guidelines range of 135 to 168 months of imprisonment. Presentencing Investigation Report at 3–4, ECF No. 24. The government sought 66 months of imprisonment and 120 months of supervised release. See generally Gov.'s Memo Aid Sentencing, ECF No. 26. Mr. Nori sought a sentence of time served followed by supervised release. See generally Mr. Nori's Mem. Aid Sentencing, ECF No. 28. This Court sentenced Mr. Nori to 60 months of imprisonment and 120 months of supervised release. Judgment, ECF No. 31.

Mr. Nori, now pro se , seeks the reduction of that sentence. See generally Pro Se Mot. Reduce Sentence (Def.'s Mot.), ECF No. 35; Supplement (Def.'s Suppl.), ECF No. 35–1.² Mr. Nori raises several arguments. First, Mr. Nori argues that his sentence is disparately harsh when compared to the sentence of 33 months imprisonment received by the defendant in a different case, which Mr. Nori asserts is substantially similar to his case.³ Def.'s Mot. Second, Mr. Nori contends that his sentence is too long because he is not dangerous to the public and supports this by reference to (1) his "character," (2) the opinion of the pre-trial services officer who evaluated him for pre-trial detention, (3) his psychological review, (4) the pre-sentence report, (5) the opinion of the probation officer who researched the pre-sentence report, and (6) the prosecutor's statement at the sentencing hearing that he was "not a predator." Def.'s Suppl. at 1. Third, Mr. Nori argues that the prosecutor committed misconduct by adding an unfounded eight point enhancement to calculate his offense level (thus increasing the Guidelines range) after Mr. Nori and the prosecutor had already reached a different agreement, in retaliation for Mr. Nori retention of new counsel.⁴ Def.'s Suppl. at 1. Fourth, Mr. Nori argues that the Court relied on Mr. Nori's protected speech, as described in the sealed addendum to the statement of offense, see ECF No. 21, to sentence him in violation of his First Amendment rights. Def.'s Suppl. at 2. In addition to requesting a reduction of his sentence, Mr. Nori also seeks several other forms of relief.

The government opposes Mr. Nori's motion. U.S.'s Consolidated Opp'n Def.'s Pro Se Motion (Opp'n), ECF No. 44. The matter is now ripe for resolution by this Court.

III. ANALYSIS

Mr. Nori's filings request various forms of relief, including a reduction in his sentence, an evidentiary hearing, the removal of his public safety factor, and access to and discovery of documents. The Court addresses each in turn.

A. Request for Reduction of Sentence

Mr. Nori seeks the reduction of his sentence.⁵ The government argues that Mr. Nori cannot meet any of the narrow grounds for modification of a sentence of imprisonment, and this Court agrees.

As a threshold matter, because a court may only modify a sentence with specific statutory authorization, the Court must determine which statutory framework controls Mr. Nori's motion for relief. See Dillon v. United States , 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ("[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment and may not be modified by a district court except in limited circumstances."); United States v. Zaia , 751 F.Supp.2d 132, 134 (D.D.C. 2010) ("Federal courts do not have inherent authority to modify a sentence, but may when authorized by statute."). Mr. Nori's initial briefing styled itself as a motion pursuant to 28 U.S.C. § 2255.⁶ Def.'s Suppl. at 1. The government argued that the Court should construe Mr. Nori's motion in accordance with 18 U.S.C. § 3582(c) instead. Opp'n at 1 n.1. In his reply, Mr. Nori states that he "does not contest, and in fact supports" the government's request "that his motion be construed" pursuant to 18 U.S.C. § 3582(c). Def.'s Reply at 1. Because the parties agree, the Court considers Mr. Nori's motion as a motion pursuant to 18 U.S.C. 3582(c).⁷

18 U.S.C. § 3582(c) permits a court to modify a sentence of imprisonment only in one of three circumstances: (1) the Director of the Bureau of Prisons seeks a reduction, see § 3582(c)(1)(A) ; (2) Federal Rule of Criminal Procedure 35 or another statute permits the modification, see § 3582(c)(1)(B) ; or (3) the Sentencing Commission subsequently lowers the sentencing range under which the defendant was sentenced, see § 3582(c)(2). See generally 18 U.S.C. § 3582(c) ; cf. United States v. Jones , 83 F.Supp.3d 145, 147 (D.D.C. 2015) ("District courts may modify sentences only in limited circumstances."). With this framework in mind, the Court considers Mr. Nori's motion.

None of the three permissible grounds which would permit this Court to reduce Mr. Nori's sentence exist here. First, the Director of the BOP has not sought a reduction, and § 3582(c)(1)(A) therefore does not apply. Second, the Sentencing Commission has not lowered the sentencing range which was applied to Mr. Nori, and § 3582(c)(2) therefore does not apply. Finally, pursuant to § 3582(c)(1)(B), because Mr. Nori does not identify any alternative statute the Court considers only whether Federal Rule of Criminal Procedure 35 allows the requested modification.

Federal Rule of Criminal Procedure 35 permits modification of a sentence of incarceration to reward a defendant who has provided "substantial assistance" to the government or, within 14 days of sentencing to "correct a sentence that resulted from arithmetical, technical, or other clear error." Fed. R. Crim. Pro. 35. Mr. Nori does not meet any of these requirements. He has not provided substantial assistance to the government (and does not assert that he has). Additionally, Mr. Nori did not file his motion within 14 days of sentencing,⁸ nor does he identify an arithmetical, technical, or clear error.⁹ The Court therefore may not modify Mr. Nori's sentence under § 3582(c)(1)(B).

Despite the lack of any statutory support for his requested sentence reduction, Mr. Nori advances several arguments in favor of that relief. But each of his arguments shares the same flaw—all fail to engage with the three permissible statutory grounds for reducing a sentence under § 3582. In the absence of specific statutory authorization, this Court is powerless to reduce Mr. Nori's sentence, and must therefore deny Mr. Nori's motion. See, e.g. , United States v. Butler , 130 F.Supp.3d 317, 319–20 (D.D.C. 2015) ("Federal courts normally do not have the authority to modify a sentence once it has been imposed; however, this general rule is subject to a few narrow exceptions."); United States v. Ali , 908 F.Supp.2d 160, 162 (D.D.C. 2012) ("Pursuant to 18 U.S.C. § 3582(c)(2), a district court may not modify a term of imprisonment once it has been imposed except where expressly permitted by statute or by Federal Rule of Criminal Procedure 35." (citing § 3582(c)(2) )); United States v. Zaia , 751 F.Supp.2d 132, 134 (D.D.C. 2010) ("Federal Courts do not have inherent authority to modify a sentence ....").

First, Mr. Nori argues that § 3582"actually places the full responsibility of a decision to reduce a ... sentence squarely inside the jurisdiction of this Honorable Court." Def.'s Reply at 2, ECF No. 46; see also Def.'s Reply at 1 (arguing that § 3582"in fact gives plain and clear jurisdiction to this court to modify a term of imprisonment in a case such as [this one]," when viewed in its entirety). As discussed above, that is not accurate. Mr. Nori's argument is based on a reading of § 3582(c)(2) that ignores the threshold requirement of...