United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
14, 2014, the Honorable Scott W. Skavdahl of the United
States District Court for the District of Wyoming, sitting by
designation, sentenced defendant to 135 months in prison.
This matter is before the Court on defendant's
Renewed Motion To Reduce Sentence Due To Retroactive
Guideline Amendments 782/788 (Doc. #1125) and Motion
Requesting Appointment Of Counsel (Doc. #1126), both
filed June 28, 2019. For reasons stated below, the Court
overrules defendant's motions.
January 8, 2014, defendant pled guilty to conspiracy to
distribute and possess with intent to distribute more than
five kilograms of cocaine and to maintain a drug-involved
premises in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 846. As noted, Judge Skavdahl sentenced
defendant to 135 months in prison.
September 16, 2015, defendant filed a Motion For Sentence
Reduction (Doc. #944) under 18 U.S.C. § 3582(c)(2).
Defendant sought relief under Amendment 782 to the United
States Sentencing Guidelines (“U.S.S.G.”), which
lowered the base offense levels for certain quantities in the
Drug Quantity Table at U.S.S.G. § 2D1.1. On November 12,
2015, the Court overruled defendant's motion. See
Memorandum And Order (Doc. #952). The Court found that
defendant was eligible for relief, but that a reduced
sentence was not warranted under Section 3582(c)(2). See
id. at 2-4. In addition to the applicable factors under
18 U.S.C. § 3553(a), the Court noted post-sentencing
information which showed that defendant had created a rap
video so that it would be disclosed, viewed and construed as
a threat to cooperators. See id. Defendant appealed
the Court's denial of his motion to reduce sentence. On
October 25, 2016, the Tenth Circuit affirmed. See United
States v. Piper, 839 F.3d 1261 (10th Cir. 2016). On June
19, 2017, the Supreme Court denied defendant's petition
for a writ of certiorari. See United States v.
Piper, 137 S.Ct. 2263.
December 18, 2017, defendant filed a motion to vacate his
sentence under 28 U.S.C. § 2255, which asserted that in
the district and appellate court proceedings, counsel
provided ineffective assistance on his motion to reduce
sentence under Section 3582(c)(2). See Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence
By A Person In Federal Custody (Doc. #1048). On March
12, 2018, the Court overruled defendant's motion. See
Memorandum And Order (Doc. #1063-1). Defendant did not
September 4, 2018, defendant filed a second motion under
Section 3582(c)(2) and Amendment 782. On October 17, 2018,
the Court overruled defendant's motion. See
Memorandum And Order (Doc. #1106). Defendant did not
matter is before the Court on defendant's renewed motion
for relief under Section 3582(c)(2) and Amendment 782.
Defendant again argues that the government's
post-sentencing discovery of a rap video should not prevent
him from receiving a reduced sentence. Renewed Motion To
Reduce Sentence (Doc. #1125) at 2. Defendant continues
to deny prior knowledge of the making of the video, which was
produced six months after his incarceration. See id.
Renewed Motion To Reduce Sentence (Doc. #1125)
present motion is his third motion seeking relief under
Amendment 782 to the Sentencing Guidelines. As a renewed
motion under Section 3582(c)(2), the Court overrules
defendant's motion for substantially the reasons stated
in the Court's prior orders and the Tenth Circuit's
mandate on defendant's initial Section 3582(c)(2) motion.
See United States v. Piper, 839 F.3d 1261 (10th Cir.
2016); Memorandum And Order (Doc. #1106);
Memorandum And Order (Doc. #1063-1); Memorandum
And Order (Doc. #952).
extent that defendant's present motion could be construed
as a motion to reconsider, the Court overrules it. At this
stage, the Court evaluates a motion to reconsider under the
standards of Rule 60(b) of the Federal Rules of Civil
Procedure. See Memorandum And Order (Doc. #1106) at
3 (although criminal rules do not expressly provide for
motions to reconsider, courts ordinarily apply same standards
that apply in civil case). Defendant cannot seek relief under
Rule 60(b)(1) more than three years after the Court initially
denied his Section 3582(c)(2) motion. See United States
v. Randall, 666 F.3d 1238, 1243 (10th Cir. 2011) (motion
to reconsider order denying relief under Section 3582(c)(2)
must be filed within deadline to file an appeal); see
also Cashner v. Freedom Stores, Inc., 98 F.3d 572, 578
(10th Cir. 1996) (party cannot assert judicial mistake in
Rule 60(b)(1) motion unless motion filed by deadline for
filing notice of appeal). Defendant also cannot satisfy the
standards for relief under Rule 60(b)(6) because (1) the rule
cannot be invoked to challenge judicial mistakes which the
party should have raised under Rule 60(b)(1); (2) the rule
cannot be used as a substitute for raising arguments on
direct appeal or as a challenge to the appellate court's
earlier ruling; and (3) defendant has not shown extraordinary
circumstances which justify relief or that denying relief
would offend justice. Defendant continues to argue that the
government's post-sentencing discovery of a rap video
should not prevent him from receiving a reduced sentence and
he lacked prior knowledge of the video, but this Court and
the Tenth Circuit have already considered these issues and
have given defendant an adequate forum to address his claims.
See Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.
2005) (Rule 60(b)(6) relief available only where exceptional
circumstances have denied moving party full and fair
opportunity to litigate claim and have prevented party from
receiving adequate redress); Atkinson v. Prudential Prop.
Co., 43 F.3d 367, 373 (8th Cir. 1994) (exceptional
circumstances relevant only where they bar adequate redress).
Defendant merely seeks to have the Court reexamine the same
issues based on the same evidence. See Lebahn v.
Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (Rule 60(b)
motion not appropriate vehicle to advance new arguments or
supporting facts available but not raised at time of original
argument). In addition to the limitations on Rule 60(b)
motions, defendant's request to reconsider this
Court's rulings is improper under the law of the case
doctrine which counsels against any attempt to reconsider an
issue that the Tenth Circuit has already adjudicated. See
Arizona v. California, 460 U.S. 605, 618 (1983) (under
law of case doctrine, once court decides rule of law,
decision continues to govern same issues in subsequent stages
of same case).
Motion For Appointment Of Counsel (Doc. #1126)
seeks appointment of counsel to assist with his renewed
motion under Amendment 782. In determining whether to appoint
counsel in the analogous context in civil cases, the Court
considers several factors including (1) the merit of the
litigant's claims; (2) the nature of the factual issues
raised in the claims; (3) the litigant's ability to
present his or her claims; and (4) the complexity of the
claims. See Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991). Applying these factors, defendant is not
entitled to counsel. As explained above, this Court has
reviewed defendant's claim and repeatedly rejected it.
Moreover, his ...