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United States v. Dume

United States District Court, D. Rhode Island

November 20, 2017

UNITED STATES OF AMERICA
v.
JOSE DUME, JR.

          ORDER

          WILLIAM E. SMITH, CHIEF JUDGE

         This matter is before the Court on two motions filed by Defendant Jose Dume, Jr. In the first, Dume seeks a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) (ECF No. 306) (“Motion for Sentence Reduction”). In the second, Dume seeks leave to file a belated notice of appeal (ECF No. 309) (“Motion for Belated Notice of Appeal”). The Government has filed responses to both motions (ECF Nos. 307, 311). For the following reasons, the motions are DENIED.

         I. Background

         On January 18, 2013, Dume entered a guilty plea to charges of conspiracy to distribute and to possess with intent to distribute heroin, possession with intent to distribute heroin, distribution of heroin, distribution of cocaine, and possession of a firearm in furtherance of a drug trafficking crime. He was sentenced on October 21, 2013, to concurrent terms of 120 months' imprisonment on the drug counts and a consecutive term of 60 months' imprisonment on the firearm count. Judgment entered on October 31, 2013. Pursuant to the plea agreement, Dume did not appeal.

         II. Discussion

         A. Motion for Sentence Reduction

         Dume has filed a second Motion for Sentence Reduction (ECF No. 306), based on Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”), [1] pursuant to 18 U.S.C. § 3582(c)(2).[2] The Government filed a response (ECF No. 307), to which Dume filed a reply (ECF No. 308) (“Reply”).

         The Court of Appeals for the First Circuit has stated that:

A defendant may seek a sentence reduction under § 3582(c)(2) only if he meets a threshold eligibility requirement: he must have been [1] sentenced to a term of imprisonment [2] based on a sentencing range [3] that has subsequently been lowered by the Sentencing Commission. The proposed reduction must also be consistent with applicable policy statements issued by the Sentencing Commission-most relevantly, section 1B1.10 of the Guidelines Manual.[3]

United States v. Roa-Medina, 607 F.3d 255, 258 (1st Cir. 2010) (brackets in original) (internal quotation marks omitted). Dume argues that he is entitled to the applicable reduction, (Reply 1-3), because “[t]he district court imposed the recommended sentence of 180 months . . . .” (Id. at 1). Dume apparently believes that the Court's “decision was based on the applicable Guidelines range since the district court expressed its independent judgement that the sentence was appropriate in light of that range.” (Id. at 2.) He is mistaken.

         The Court imposed the mandatory minimum sentence, 120 months' imprisonment, on Count I, the conspiracy charge, and a mandatory consecutive term of 60 months on Count XX, the firearm charge. The Plea Agreement (ECF No. 74) listed both the statutory maximum and statutory minimum penalties Dume faced. (Plea Agreement ¶ 6.) During the January 18, 2013, change of plea hearing, the Court spelled out the penalties enumerated in the Plea Agreement:

So in paragraph six this is all set forth. On Count I, the maximum penalty is life imprisonment with a mandatory minimum term of ten years . . . .
. . . .
And then Count XX, five years consecutive to any other sentence . . . .
. . . .
Now, you understand that there are mandatory minimum terms of imprisonment that are applicable here. The mandatory minimum is 15 years that would be applicable. That's ten years on ...

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