United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA United States District Judge
matter is before the court on defendant Allen E.
Whisenant's pro se Motion for Reconsideration (Doc. 48.)
The court recently denied a motion by defendant seeking an 18
U.S.C. § 3582(c)(2) reduction in his sentence based on
Amendment 782 to the United States Sentencing Guidelines. In
his original motion, defendant claimed that he is entitled to
relief under the Supreme Court's guidance in Hughes
v. United States, 135 S.Ct. 1765 (2018), because he
entered a guilty plea pursuant to Fed. R. Crim. P.
court dismissed defendant's motion for lack of
jurisdiction because defendant received a statutory minimum
sentence of 120 months. The court held that the statutory
minimum did not change, and ultimately, the guideline range
was not considered because the statutory minimum was imposed.
See Koons v. United States, 138 S.Ct. 1783, 1788-89
(2018) (“[W]hen the ranges play no relevant part in the
judge's determination of the defendant's ultimate
sentence[, ] the resulting sentence is not ‘based
on' a Guidelines range.”).
claims that the court ruled without allowing him a reply
brief, denying him due process. Defendant also believes that
the court's decision lacked personalized analysis.
Defendant further argues that the Sentencing Guidelines are
the starting point for any sentencing calculation, so
defendant should be eligible for a sentence reduction. And he
maintains that Hughes makes him eligible for relief.
to grant or deny a motion for reconsideration is committed to
the court's discretion. GFF Corp. v. Assoc. Wholesale
Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997);
Hancock v. City of Okla. City, 857 F.2d 1394, 1395
(10th Cir. 1988). In exercising that discretion, courts
generally recognize three major grounds justifying
reconsideration: (1) an intervening change in controlling
law; (2) availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See
Marx v. Schnuck Mkts., Inc., 869 F.Supp. 895, 897 (D.
Kan. 1994) (citations omitted); D. Kan. Rule 7.3 (listing
three bases for reconsideration of order); see also
Sithon Mar. Co. v. Holiday Mansion, 177 F.R.D. 504, 505
(D. Kan. 1998) (“Appropriate circumstances for a motion
to reconsider are where the court has obviously
misapprehended a party's position on the facts or the
law, or the court has mistakenly decided issues outside of
those the parties presented for determination.”);
United States v. D'Armond, 80 F.Supp.2d 1157,
1243 (D. Kan. 1999) (“This court believes that the
standards for evaluating a motion to reconsider in the civil
context are relevant for evaluating a motion to reconsider in
a criminal case.”). “A party's failure to
present its strongest case in the first instance does not
entitle it to a second chance in the form of a motion to
reconsider.” Sithon, 177 F.R.D. at 505. A
motion to reconsider is not a proper place to reargue
arguments that the court previously rejected. See
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
defendant's arguments meet the standards for
reconsideration. While defendant does not specify a ground
for reconsideration, it appears that the best fit for
defendant's arguments is that the court needs to correct
clear error or prevent manifest injustice. But a reply brief
is not required. It is an optional brief. See D.
Kan. R. 7.1(c) (providing that a responsive brief must be
filed, but that a reply brief may be filed). The court did
provide personalized analysis, tailored to defendant's
case. (See Doc. 47, at 1 (considering
defendant's specific sentence).) Defendant's citation
of United States v. Smith, 896 F.3d 466 (D.C. Cir.
2018), as legal authority for requiring more specific
analysis of defendant's personalized situation is not
controlling, as Smith required personalized analysis
upon consideration of the 18 U.S.C. § 3553
factors-factors which the court does not examine here, as
defendant was sentenced to a statutory minimum. See
896 F.3d at 474-75. And defendant's other arguments are
merely a rehashing of arguments that the court rejected.
Defendant was sentenced based on the statutory mandatory
minimum, and he is not entitled to § 3582(c)(2) relief.
IS THEREFORE ORDERED BY THE COURT that defendant
Allen Whisenant's Motion for ...