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United States v. Moncrief

United States District Court, D. Nevada

September 17, 2019

UNITED STATES OF AMERICA, Plaintiff(s),
v.
DENNIS WILLIAM MONCRIEF, Defendant(s).

          ORDER

         Presently before the court is pro se[1] defendant Dennis Moncrief's motion for leave to proceed in propria persona. (ECF No. 34).

         Also before the court is Moncrief's motion for appointment of counsel. (ECF No. 35).

         Also before the court is Moncrief's motion to reconsider sentence. (ECF No. 36). The government has not filed a response, and the time for doing so has passed.

         I. Background

         On March 3, 2008, Moncrief pleaded guilty to possession of firearms by a felon (18 U.S.C. §§ 922(g)(1) and 924(a)(2)) and possession of stolen firearms (18 U.S.C. §§ 922(j) and 924(a)(2)). United States v. Moncrief, case no. 2:08-cr-00020-APG-RJJ-1, ECF No. 10. On September 17, 2008, Moncrief was sentenced to the mandatory minimum of 180 months custody pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to be followed by 5 years of supervised release. Id. at 19.

         On June 26, 2015, the Supreme Court decided Johnson v. United States, which invalidated the ACCA's residual clause as unconstitutionally vague. 135 S.Ct. 2551 (2015). Following Johnson, Moncrief and the government filed a joint motion to correct sentence under 28 U.S.C. § 2255 on June 29, 2016, arguing that, absent the residual clause, his original sentence was based on an improper determination that he is an armed career criminal under the ACCA. Moncrief, case no. 2:08-cr-00020-APG-RJJ-1, ECF No. 41. The court granted that motion on the same day, and on July 7, 2016, an amended judgment was entered sentencing Moncrief to time served, to be followed by 3 years of supervised release. Id. at ECF Nos. 42, 43. This resulted in his immediate release from custody. Id. at ECF Nos. 42, 43.

         In the instant case, Moncrief pleaded guilty on March 5, 2019, pursuant to a plea agreement (ECF No. 27), to aggravated identity theft (18 U.S.C. § 1028A(a)(1)) and failure to surrender for service of sentence (18 U.S.C. § 3146(a)(2)). (ECF No. 31). On June 24, 2019, the court sentenced Moncrief to 24 months custody for the aggravated identity theft, and 12 months and a day custody for the failure to surrender, to run consecutively, and to be followed by 1 year of supervised release. Id.

         Moncrief now seeks leave from the court to proceed in propria persona, or in the alternative to proceed after the appointment of counsel, on his instant motion to reconsider sentence.[2]

         II. Legal Standard

         A court generally may not modify a prison sentence once it has been imposed. United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). A court may modify a prison sentence only to the extent it is permitted by statute or by Federal Rule of Criminal Procedure 35. Id.; see also United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000). . . . . . .

         The applicable statute is 18 U.S.C. § 3582, which states in relevant part:

(c) Modification of an imposed term of imprisonment.-The court may not modify a term of imprisonment once it has been imposed except that-
(1) in any case-
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term ...

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