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United States v. Wallace

United States District Court, D. Utah Central Division

June 26, 2018

UNITED STATES OF AMERICA, Plaintiff - Respondent,
v.
PRESTON SCOTT WALLACE, Defendant - Movant.

          MEMORANDUM DECISION AND ORDER

          Clark Waddoups United States District Court Judge.

         INTRODUCTION AND BACKGROUND

         This 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 sentencing.

         On June 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).

         Mr. 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 motions.

         ANALYSIS

         I. FINANCIAL ABILITY

         Mr. 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).

         II. MOTION TO STAY

         Mr. 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) (emphasis added).

         Mr. 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.

         A. Sentencing Agreement Not Based on Guideline Range

         “A 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. at 534-35.

         In this 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 ¶ ...


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