United States District Court, D. Nevada
before the court is pro se defendant Dennis
Moncrief's motion for leave to proceed in propria
persona. (ECF No. 34).
before the court is Moncrief's motion for appointment of
counsel. (ECF No. 35).
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.
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.
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.
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.
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
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). . . . . . .
applicable statute is 18 U.S.C. § 3582, which states in
(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 ...