United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on Defendant Marina R.
McCuen's pro se Amended Motion to Reduce
Sentence (the “Amended Motion”) (Doc. 39). Also
before the Court is Defendant's pro se Motion to
Modify Sentence (the “Motion”) (Doc. 33), as well
as several letters in support of the Motion (Docs. 35-38).
The Government has not filed a response to either of
Defendant's Motions. Since the time for responses has
elapsed, this matter is ripe for disposition. A document
filed pro se is to be “liberally construed,
” and cannot be held to the same standards as a
document filed by an attorney. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). As such, Defendant's Motion and
Amended Motion, which relies on 18 U.S.C. § 3742(e) and
18 U.S.C. § 3553(a) for relief, is properly construed as
a motion filed pursuant to 18 U.S.C. § 3582(c), the
statute governing modifications to imposed terms of
imprisonment. For the reasons stated below, the Motion (Doc.
33) and the Amended Motion (Doc. 39) are both DENIED.
Furthermore, the Government is ORDERED to
file a response to this Order that addresses Defendant's
projected release date of August 20, 2017.
21, 2012, a Bill of Information was filed against Defendant
Marina R. McCuen. (Doc. 1) On June 25, 2012, Defendant
entered a plea of guilty to one count of Conspiracy to
Defraud the United States by Impairing and Impeding the
Functions of an Agency of the United States, in violation of
18 U.S.C. § 371. (Doc. 7). At the June 25, 2012 plea
hearing, the magistrate judge set bond pending sentencing at
$25, 000.00 unsecured and Defendant paid the unsecured bond
and was released under administrative supervision.
(See Doc. 8, Doc. 9, Doc. 11 at 1). On August 4,
2014, Defendant appeared before this Court for sentencing,
and this Court sentenced Defendant to fifty months'
imprisonment. (Doc. 19 at 1-3). This Court initially ordered
Plaintiff to report to a correctional institution designated
by the Federal Bureau of Prisons (“BOP”) no later
than December 1, 2014, but subsequently extended the deadline
for Defendant to report to January 5, 2015. (See
Doc. 29, see also Doc. 19 at 2). On January 5, 2015,
Defendant reported to Federal Prison Camp Alderson. (Doc.
30). Presently, the Federal Bureau of Prison's inmate
locator indicates that Defendant is located at Raleigh
Residential Reentry Management facility with a projected
release date of August 20, 2017. See Federal Inmate
Locator, available at https://www.bop.gov/inmateloc/ (Find by
Name: “Marina R. McCuen”) (last visited
Motion and Amended Motion, Defendant seeks a sentence
reduction based on her allegedly exemplary conduct in prison,
including completing a number of alcohol abuse and vocational
courses, and cites Pepper v. United States, 562 U.S.
476 (2011), in support of her argument. (Doc. 33 at 1, Doc.
39). Defendant's Motion also argues that, given her
conduct in prison, a fresh analysis under the 18 U.S.C.
§ 3553(a) factors would result in the imposition of a
sentence of less than fifty months. (Doc. 33 at 1-2).
court imposes term of imprisonment, the term of imprisonment
is generally considered to be “final for all
purposes.” 18 U.S.C. § 3582(b). Narrow exceptions
exist that permit a court to modify a term of imprisonment.
See 18 U.S.C. § 3582(b), (c). Specifically, a
court is only permitted to modify a term of imprisonment
“if the Bureau of Prisons moves for a reduction, the
Sentencing Commission amends the applicable Guidelines range,
or another statute or [Fed. R. Crim. P.] 35
expressly permits the court to do so.”
United States v. Goodwyn, 596 F.3d 233, 235 (4th
Cir. 2010) (emphasis in original). Here, the Director of the
BOP has not moved for a reduction, Defendant does not allege
that she is entitled to relief under any amendment adopted
and deemed to apply retroactively by the Sentencing
Commission, and there is no statute expressly permitting the
Court to reduce Defendant's sentence based on her conduct
in prison. Therefore, Defendant has not established a right
to a sentence reduction pursuant to 18 U.S.C. § 3582(c).
Defendant's reliance on Pepper v. United States
is misplaced. While Pepper permits a district court
to consider a defendant's post-sentencing rehabilitation
efforts, it permits such only within the context of
resentence following a defendant's original sentence
being set aside on appeal. Pepper, 562 U.S. at 490;
see also 18 U.S.C. § 3742(g). Here, the
resentencing Defendant seeks can only fall within the purview
of 18 U.S.C. § 3582, and not within 18 U.S.C. §
3742, because Defendant's original sentence has not been
set aside as a result of a successful appeal. In fact, while
Defendant filed a notice of appeal after this Court imposed
its sentence, the United States Court of Appeals for the
Fourth Circuit dismissed Defendant's direct appeal after
Defendant moved to voluntarily dismiss the appeal. (Doc. 25).
Finally, Defendant's reliance on the 18 U.S.C. §
3553(a) factors is also misplaced because those factors are
only relevant and available for consideration by the district
court if the court has some authority to otherwise resentence
a defendant. See 18 U.S.C. § 3582(c).
Court, however, advises Defendant that if, as she alleges,
she exhibited exemplary behavior in prison, then she should
have earned good time credits of up to fifty-four days per
year. See 18 U.S.C. § 3624 (b)(1). In fact,
given the fifty-month sentence Defendant received,
Defendant's date of incarceration, and Defendant's
projected release date, it appears that Defendant has
received good time credits for her behavior while in prison.
Thus, although the Court lacks the authority to reduce
Defendant's term of imprisonment based on her good
behavior in prison, Defendant sentence has already been
reduced, for all practicable purposes, as a result of her
conduct while incarcerated.
being said, this Court is unable to reconcile Defendant's
release on bond pending sentencing, the fifty-month sentence
imposed by this Court, and Defendant reporting to FPC
Alderson to begin serving her sentence on January 5, 2015
with the BOP's a projected release date of August 20,
2017. Even accounting for good time credits and the
possibility that the BOP has determined that Defendant is a
suitable candidate for completing the last 10% of her
sentence on home confinement, see 18 U.S.C. §
3624(b), (c)(2), Defendant will not have severed the
equivalent of a fifty-month sentence by August 20, 2017. At
present, this Court is unable to determine if the apparent
discrepancy between the sentence imposed by this Court and
Defendant's projected release date is the result of (1)
an error in this Court's records as to Defendant's
pre-sentencing custody status; (2) an error in the BOP's
federal inmate locator system; (3) an error by the BOP in
calculating Defendant's sentence; or (4) some other
error. Accordingly, the Court ORDERS the
Government to confer with the BOP and to file a response
addressing the apparent discrepancy with Defendant's
projected release date of August 20, 2017. The Government
shall have up to and including August 15, 2017 to file its
IS, THEREFORE, ORDERED THAT:
Defendant's Motion to Reduce Sentence (Doc. 33) is
Defendant's Amended Motion to Reduce Sentence ...