United States District Court, D. Utah Central Division
MEMORANDUM DECISION AND ORDER
Waddoups United States District Court Judge.
matter is before the court on various motions filed by
Defendant Preston Scott Wallace. On June 16, 2015, the court
sentenced Mr. Wallace to 84-months imprisonment for
possession of cocaine with intent to distribute. Although the
quantity of cocaine was below 50 grams, Mr. Wallace faced a
guideline range of 151 to 188 months based on a career
offender status. The parties entered into a Rule 11(c)(1)(C)
agreement, however, which the court accepted for purposes of
13, 2016, Mr. Wallace filed a § 2255 Motion to correct
his sentence on the basis that he was not a career offender
and had been ill-advised by his counsel. The question of
whether Mr. Wallace qualified as a career offender was
subject to debate. As a compromise, the parties filed a
Stipulated Response to the Motion, agreeing that Mr. Wallace
“should be resentenced to 48 months in prison.”
Stipulated Response to Motion to Vacate, at 1 (ECF No. 17 in
Case No. 2:16-cv-654); see also Hearing Tr., at
25-26 (ECF No. 73 in Case No. 2:14-cr-218) (indicating the
parties reached a compromise because there were risks of
litigation). Although the 48-month term was above the
guideline range for a non-career offender, the court accepted
the parties' compromise and entered an Amended Judgment
on June 16, 2017. The Amended Judgment stated the 48-month
term was to run concurrent with sentences imposed in three
State cases. Amended Judgment, at 2 (ECF No. 51).
Wallace then filed a new Motion for Reduction of Sentence on
July 6, 2017. The court heard oral argument on the motion on
January 9, 2018, and denied the motion. That decision is on
appeal, and Mr. Wallace now seeks a stay of the amended
sentence on the grounds that the guideline range was
calculated improperly and that he was not given credit for
time served in State custody. Mr. Wallace also moves for
leave to proceed in forma pauperis on appeal and for payment
of transcript fees. For the reasons stated below, the court
grants Mr. Wallace's motions to proceed in forma pauperis
and for payment of transcript fees. It denies the remaining
Wallace moves to proceed in forma pauperis and for payment of
necessary transcript fees. Mr. Wallace “was determined
to be financially unable to obtain an adequate defense in his
criminal case.” Fed. R. App. P. 24(a)(3); Minute Entry
(ECF No. 7) (finding Defendant eligible for CJA appointment).
Moreover, he has provided a new affidavit showing that he
meets the requirements to proceed in forma pauperis. Pursuant
to Rule 24 of the Federal Rules of Appellate Procedure and
the new affidavit, the court grants Mr. Wallace's motion
for leave to proceed in forma pauperis (ECF Nos. 68 and 72).
It also grants Mr. Wallace's motion for payment of
necessary transcript fees (ECF No. 71).
MOTION TO STAY
Wallace moves to stay his sentence while his appeal is
pending because the appeal process likely will exceed the
time remaining on his sentence. He contends that if the
court's decision is reversed on appeal, he will have
suffered irreparable harm from an excessive sentence. Mr.
Wallace relies upon 18 U.S.C. § 3143(b)(1)(A) and
(B)(iv). Section 3143 starts with the presumption that a
person who has been sentenced will be imprisoned.
Id. § 3143(b)(1). To overcome the presumption,
several factors must be established, including “that
the appeal . . . raises a substantial question of law or fact
likely to result in . . . a reduced sentence to a
term of imprisonment less than the total of the time already
served plus the expected duration of the appeal
process.” Id. § 3143(b)(1)(B)(iv)
Wallace contends the court failed to apply Amendment 782 when
calculating the guideline range for his offense. Had that
Amendment been applied, Mr. Wallace contends it would have
resulted in a two-point reduction. Thus, he asserts he is
likely to prevail on appeal and obtain a reduced sentence.
The court disagrees.
Sentencing Agreement Not Based on Guideline Range
district court does not have inherent authority to modify a
previously imposed sentence; it may do so only pursuant to
statutory authorization.” United States v.
Wilkerson, 485 Fed.Appx. 318, 321 (10th Cir. 2012)
(quotations and citations omitted); see also 18
U.S.C. § 3582(c). One exception to this rule is if a
defendant was sentenced based on a guideline range and the
Sentencing Commission subsequently lowered that range, then a
defendant may be re-sentenced. 18 U.S.C. § 3582(c)(2).
The Supreme Court interpreted this provision in Freeman
v. United States, 564 U.S. 522 (2011). Under a plurality
decision, the holding provides that when the parties have
agreed to a sentence, that agreement is based on the
sentencing guideline range only if the agreement expressly
uses that range “as the basis or foundation for the
term of imprisonment.” Id. at 534-35
(Sotomayor, J., concurring); United States v.
Vielmas-Valdiviezo, 676 Fed.Appx. 807, 810 (10th Cir.
2017) (stating that Justice Sotomayor's concurrence in
Freeman is controlling); cf United States v.
Pam, 867 F.3d 1191, 1198-99 (10th Cir. 2017). If the
agreement and subsequent sentence were not based on the
guideline range, the Court concluded 18 U.S.C. §
3582(c)(2) has no applicability. Freeman, 564 U.S.
case, Mr. Wallace's original sentence was not based on
the guideline range. The 11(c)(1)(C) agreement merely stated
“the sentence imposed by the Court will be 84 months
imprisonment, and [the parties] further agree that 84 months
is a reasonable sentence.” Statement in Advance of
Plea, at ¶ ...