United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE
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.
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.
Motion for Sentence Reduction
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.”),  pursuant to 18 U.S.C. §
3582(c)(2). The Government filed a response (ECF No.
307), to which Dume filed a reply (ECF No. 308)
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  sentenced to a term of
imprisonment  based on a sentencing range  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
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
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