Filed: Feb. 13, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7542 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THERESA CREPEAU, a/k/a T Crepeau, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:94-cr-00002-JEB-4) Submitted: January 14, 2009 Decided: February 13, 2009 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Affirmed in part; vacated in part and remanded by
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7542 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THERESA CREPEAU, a/k/a T Crepeau, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:94-cr-00002-JEB-4) Submitted: January 14, 2009 Decided: February 13, 2009 Before TRAXLER, GREGORY, and SHEDD, Circuit Judges. Affirmed in part; vacated in part and remanded by ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7542
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THERESA CREPEAU, a/k/a T Crepeau,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:94-cr-00002-JEB-4)
Submitted: January 14, 2009 Decided: February 13, 2009
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part; vacated in part and remanded by unpublished
per curiam opinion.
Theresa Crepeau, Appellant Pro Se. Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, Stephen
Wiley Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theresa Crepeau appeals a district court order denying
her motion for a sentence reduction under 18 U.S.C. § 3582(c)
(2006). We affirm in part and vacate in part and remand with
instructions that the district court consider Crepeau’s motion
as it pertains to Amendment 505 of the Sentencing Guidelines.
In July 1994, Crepeau was convicted of conspiracy to
distribute controlled substances, distribution and possession
with intent to distribute cocaine and cocaine base, making a
premises available for storing and distributing cocaine and
cocaine base, three counts of money laundering and one count of
using a firearm in relation to a drug trafficking crime. She
was found responsible for 11.021.4 kilograms of crack cocaine
and 144 kilograms of cocaine powder and was assigned a base
offense level of 40 and placed in Criminal History Category II.
The range of imprisonment for the drug and money laundering
convictions was 324 to 405 months’ imprisonment. Crepeau was
sentenced to 360 months’ imprisonment for those convictions and
a consecutive sentence of 60 months for the firearm conviction.
In March 2008, Crepeau filed a motion for appointment
of counsel in order to file a motion under 18 U.S.C.
§ 3582(c)(2) (2006), to take advantage of Amendment 706 to the
Sentencing Guidelines and other relief deemed appropriate. The
district court construed Crepeau’s motion as a motion under
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§ 3582(c)(2) and instructed the Government to file a response
indicating whether it opposed the motion, and if so, to file a
second response citing the reasons for opposing the motion.
Crepeau was given thirty days after the Government filed a
response to file a reply. The Government filed a response
stating that under Amendments 706 and 711, Crepeau was not
entitled to relief because the combined weight of the crack
cocaine and the powder cocaine equaled 102,643.4 kilograms of
marijuana for a base offense level of thirty-eight. The
Government noted that because Crepeau was responsible for more
than 4.5 kilograms of crack cocaine, she was not entitled to
relief under Amendments 706 and 711 because the offense level
was not lowered for crack quantities greater than 4.5 kilograms.
The district court agreed with the Government and found that
because Crepeau was responsible for more than 4.5 kilograms of
crack cocaine, she was not entitled to relief under Amendments
706 and 711.
Crepeau filed a motion to reconsider because she
argued that according to the district court’s order directing
the Government to respond, she was entitled to file a reply
within thirty days of the Government’s response. She also
argued that United States v. Booker, 543 U.S. 220 (2005),
applied to her case and the district court should consider anew
the 18 U.S.C. § 3553 (2006) sentencing factors. The district
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court granted Crepeau’s motion, vacated the prior order and
directed Crepeau to file a reply. Crepeau replied, stating that
she was originally sentenced in 1994 to an offense level of
forty. Crepeau noted the Government erred claiming there was no
change to her offense level. Crepeau further noted that
Amendment 505 capped drug quantity offense levels at thirty-
eight and it was issued after she was sentenced. Crepeau
claimed she never received retroactive application of Amendment
505, which became effective November 1, 1994, and is
retroactive. See U.S. Sentencing Guidelines Manual § 1B1.10(c)
(2008). Crepeau noted that if she was sentenced at level
thirty-eight with a Criminal History Category of II, her range
of imprisonment under the Guidelines would be 262 to 327 months.
Crepeau also argued that Booker made the Guidelines advisory and
she could be sentenced below the range of imprisonment.
The district court entered a superseding order denying
Crepeau’s motion, finding that because she was responsible for
more than 4.5 kilograms of crack cocaine, she was ineligible for
a sentence reduction. The court did not address the application
of Amendment 505.
We review the district court’s denial of a motion
under § 3582(c)(2) for abuse of discretion. See United
States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004). A court
abuses its discretion if it fails or refuses to exercise
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discretion, or if it relies on erroneous legal or factual
premises. James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
Insofar as the district court denied Crepeau’s request
for a sentence reduction under Amendments 706 and 711, we find
no abuse of discretion and affirm that part of the district
court order. Crepeau’s claim that the court should have
considered a sentence below the Guidelines is without merit.
“[A] district judge is not authorized to reduce a defendant’s
sentence below the amended guideline range.” United States v.
Dunphy, __ F.3d __, 2009 WL 19139, *8 (4th Cir. 2009).
However, we find Crepeau adequately put forth a claim
that she was entitled to a sentence reduction under Amendment
505, a claim not addressed by either the Government or the
district court. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (pro se pleadings are entitled to a liberal
construction); see also Castro v. United States,
540 U.S. 375,
381 (2003) (noting that courts often ignore pro se labels on
pleadings in order to avoid an unnecessary dismissal or an
inappropriately stringent application of formal labeling
requirements).
Because the district court did not consider Crepeau’s
request under § 3582(c) for a sentence reduction as a result of
Amendment 505, we vacate in part the district court’s order and
remand for further proceedings. We take no position as to how
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the court should exercise its discretion if it finds Amendment
505 lowered Crepeau’s Guidelines sentencing range.
Accordingly, we affirm in part and vacate in part and
remand for further proceedings consistent with this opinion. We
deny Crepeau’s motions to place the case in abeyance pending
Dunphy and for appointment of counsel. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
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