United States District Court, E.D. North Carolina, Southern Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
17, 2013, pursuant to a written plea agreement, Donny Deese
("Deese") pleaded guilty to conspiracy to
distribute and possess with the intent to distribute 280
grams or more of cocaine base (crack) and 5 kilograms or more
of cocaine (count one) and possession of a firearm in
furtherance of a drug trafficking crime and aiding abetting
(count two). See [D.E. 1, 91, 97]. On January 17, 2014, the
court held Deese's sentencing hearing. See [D.E. 171,
176]. At the hearing, the court adopted the facts set forth
in the Presentence Investigation Report ("PSR").
See Fed. R. Crim. P. 32(i)(3)(A)-(B). The court calculated
Deese's total offense level to be 40, his criminal
history category to be III, and his advisory guideline range
to be 360 months' to life imprisonment. See
Resentencing Report. After granting the government's
motion under U.S.S.G. § 5K1.1 and thoroughly considering
all relevant factors under 18 U.S.C. § 3553(a), the
court sentenced Deese to 216 months' imprisonment on
count one, and 60 months' imprisonment on count two,
consecutive. See id.: [D.E. 176]. Deese did not
March 8, 2016, Deese moved (through counsel) for a sentence
reduction under 18 U.S.C. § 3582(c)(2), U.S.S.G. §
IB 1.10, and Amendment 782 [D.E. 242]. Deese's new
advisory guideline range is 292 to 365 months'
imprisonment, based on a total offense level of 38 and a
criminal history category of HI. See Resentencing Report.
Deese requests a 175-month sentence on count one, and a
60-month consecutive sentence on count two. See id.;
court has discretion to reduce Deese's sentence under
Amendment 782. See, e.g.. Dillon v. United
States, 560 U.S. 817, 827 (2010); United States v.
Peters, 843 F.3d 572, 574 (4th Cir. 2016); United
States v. Patterson, 671 Fed.Appx. 105, 105-06 (4th Cir.
2016) (per curiam) (unpublished); United States v.
Cole, 618 Fed.Appx. 178, 178-79 (4th Cir. 2015) (per
curiam) (unpublished); United States v. Thomas, 546
Fed.Appx. 225, 225-26 (4th Cir. 2013) (per curiam)
(unpublished); United States v. Perez, 536 Fed.Appx.
321, 321 (4th Cir. 2013) (per curiam) (unpublished);
United States v. Smalls, 720 F.3d 193, 195-97 (4th
Cir. 2013); United States v. Mann, 709 F.3d 301,
306-07 (4th Cir. 2013); United States v. Stewart,
595 F.3d 197, 200 (4th Cir. 2010). In deciding whether to
reduce Deese's sentence, the court finds that Deese
engaged in serious criminal behavior. See PSR [D.E. 153]
¶¶ 4-12. Moreover, Deese is a violent recidivist
and has convictions for possession of marijuana (three
counts), assault on a female (two counts), assault by
pointing a gun, injury to personal property (two counts),
communicating threats, resisting a public officer, trespass,
assault with a deadly weapon, and possession of a schedule VI
controlled substance. See id. ¶¶ 16-29.
Deese also has performed poorly on supervision and has a
spotty work history. See Id. ¶¶
31, 42-47. Nonetheless, Deese has taken some positive steps
while incarcerated on his federal sentence. See Resentencing
Report; cf. Pepper v. United States, 562 U.S. 476,
reviewed the entire record and all relevant policy
statements, the court finds that Deese received the sentence
that was "sufficient, but not greater than
necessary" under 18 U.S.C. § 3553(a). Further
reducing Deese's sentence would threaten public safety in
light of his serious criminal conduct and serious criminal
history. Cf U.S.S.G. § IB 1.10, cmt. N, 1 (B)(ii). Thus,
the court denies Deese's motion for reduction of sentence
under Amendment 782. See, e.g.. Patterson.
671 Fed.Appx. at 105-06; Cole, 618 Fed.Appx. at
178-79; Thomas, 546 Fed.Appx. at 225-26;
27, 2016, and July 8, 2016, Deese filed motions to vacate
under 28 U.S.C. § 2255 and challenged his sentence under
Johnson v. United States, 135 S.Ct. 2551 (2015)
[D.E. 256.2611. On February 27, 2017, the government moved to
dismiss [D.E. 271] and filed a memorandum in support [D.E.
272]. Johnson does not help Deese because Deese was
sentenced for possessing a firearm in furtherance of a drug
trafficking crime. Thus, Johnson does not undermine
Deese's conviction and sentence on count two. See [D.E.
272] 4. Thus, Deese cannot obtain relief under section 2255.
the court DENIES Deese's motions for reduction of
sentence [D.E. 242], GRANTS the government's motion to
dismiss [D.E. 271], DISMISSES Deese's motions to vacate
[D.E. 256, 26l], and DENEES a certificate of appealability.
See 28 U.S.C. § 2253(c): Miller-El v. ...