United States District Court, D. Maine
ORDER ON MOTION TO MODIFY SENTENCING
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
January 6, 2014, the Court sentenced Ricky Sirois to
forty-eight months of incarceration, three years of
supervised release, and a $100 special assessment for
engaging in a conspiracy to distribute and possess with the
intent to distribute oxycodone. J. (ECF No. 315).
Mr. Sirois appealed his sentence to the Court of Appeals for
the First Circuit and on May 22, 2015, the First Circuit
affirmed it. United States v. Sirois, 602 Fed.Appx.
1 (1st Cir. 2015).
Sirois commenced a three-year term of supervised release on
June 1, 2015. Pet. for Warrant or Summons for Offender
under Supervision (ECF No. 360). On May 25, 2017, the
Government filed a petition for warrant against Mr. Sirois,
alleging that he had been arrested on a state drug charges
and had tested positive for illegal drugs. Id. at
1-2. On August 7, 2017, Mr. Sirois appeared in court and
admitted the supervised release violations. Tr. of
Proceedings 4:5-8:4 (ECF No. 381) (Revocation
Tr.). The Court imposed a sentence of two years of
incarceration with no supervised release to follow.
Revocation J. at 2. Mr. Sirois appealed the
Court's sentence to the Court of Appeals for the First
Circuit and on August 6, 2018, the Court of Appeals affirmed
the sentence. United States v. Sirois, 898 F.3d 134
(1st Cir. 2018).
August 21, 2018 and again on September 13, 2018, Mr. Sirois
wrote the Court, noting that in his guideline calculations,
he had not been accorded an additional two-level reduction,
which he claims went into effect on November 1, 2014,
reducing all non-violent drug offenders by two points.
Mot. to Reduce Sentence (ECF No. 400); Mot. to
Reduce Sentence (ECF No. 403) (Def.'s
Mots.). In his motions, Mr. Sirois asks the Court not
only to reduce his original sentence but also to apply the
time he should not have served on the original sentence to
his sentence on the revocation. Id.
motions, Mr. Sirois references an amendment to the United
States Sentencing Commission guideline calculations in which
the guideline ranges for illegal drugs under U.S.S.G. §
2D1.1 were generally reduced two levels. Def.'s
Mots. at 1. In anticipation of his January 6, 2014
sentencing hearing, the Probation Office calculated his drug
quantity to equal 73.31 kilograms of marijuana equivalent,
which placed Mr. Sirois into a base offense level of 22.
Presentence Report at 6 (PSR). After a three-level reduction
for acceptance of responsibility, the Probation Office found
that Mr. Sirois had a total offense level of 19 and a
criminal history category of VI for a guideline range of
incarceration of 63 to 78 months, a fine range of $6, 000 to
$1, 000, 000, supervised release of three years, and a
special assessment of $100. Id. at 29-30.
the calculations the Court made at his January 6, 2014
sentencing hearing, the Court lowered Mr. Sirois' drug
quantity to 25.192 kilograms of marijuana equivalent for a
new base offense level of 18 and a total offense level of 15.
Tr. of Proceedings 39:15-24 (ECF No. 326). This
resulted in a guideline range of incarceration of 41 to 51
months, a fine range of $4, 000 to $1, 000, 000, supervised
release of three years, and a special assessment of $100.
Id. The Court imposed a forty-eight month term of
incarceration. J. at 2. The Court did not impose a
fine. J. (ECF No. 315).
Mr. Sirois' requested calculations, his base offense
level would be further reduced to 16 and his total offense
level to 13. This would have resulted in a guideline range of
33 to 41 months. As the new range is lower than the imposed
sentence of 48 months, Mr. Sirois is asking that the Court
credit him on his two-year revocation sentence for the
difference between the guideline ranges calculated at his
sentencing hearing (41 to 51) and what he believes should
have been calculated at his sentencing hearing (33 to 41), an
eight to ten month difference.
are several problems with Mr. Sirois' motions. First,
they are too late. The rules provide a limited number of
vehicles for amending a criminal judgment and they are
time-limited. See Fed. R. Crim. P. 33(b)(2), Fed. R.
Crim. P. 35(a). Mr. Sirois made no timely post-conviction
motion with this Court. Furthermore, Mr. Sirois says that the
United States Sentencing Commission adopted the two-level
reduction on November 1, 2014. Def.'s Mots. at
1. This was during the time his appeal was pending before the
Court of Appeals for the First Circuit. However, Mr. Sirois
did not raise the potential application of the two-level
reduction before the Court of Appeals. See Sirois,
602 Fed.Appx. at 1-2.
Court considered his current motions as a motion under 28
U.S.C. § 2255, they would be time-barred because his
motions were filed more than one year after “the date
on which the judgment of conviction becomes final[.]”
28 U.S.C. § 2255(f)(1). Here, the Court of Appeals
issued its mandate on June 15, 2015, Mandate (ECF
No. 332), and Mr. Sirois did not file his motions until
August 27, 2018 and September 13, 2018, more than three years
after his conviction became final. In addition, if the merits
of his claims were reached, they would be procedurally
defaulted. Bousley v. United States, 523 U.S. 614,
Court reached the merits of Mr. Sirois' motions, it would
not grant them. Mr. Sirois is not quite correct about the
date the United States Sentencing Commission adopted the
two-level reductions for drug quantity, at least as applied
to him. On April 30, 2014, the United States Sentencing
Commission submitted to Congress an amendment to the federal
sentencing guidelines that revised the guidelines applicable
to drug trafficking offenses by reducing by two levels the
offense levels assigned to drug quantities. Amendment 782
became effective on November 1, 2014 but was applicable only
to sentences imposed after its effective date. As November 1,
2014 was after January 6, 2014, when the Court sentenced Mr.
Sirois, the new Guideline calculations would have applied to
him only if they were made retroactive, which at that point
they had not been.
18, 2014, the Commission addressed the issue of retroactivity
and concluded that, even though its two-level reduction would
be retroactive, the effective date for retroactivity would be
November 1, 2015. U.S.S.G. Retroactivity of Amendment
782 § 1B1.10(e) (Jul. 14, 2014) (“The court
shall not order a reduced term of imprisonment based on
Amendment 782 unless the effective date of the court's
order is November 1, 2015, or later”). To be eligible
for a retroactive reduction, a defendant had to have been
serving a term of imprisonment as of November 1, 2015.
Id. § 1B1.10(a)(1) (“In a case in which a
defendant is serving a term of imprisonment . . .
the court may reduce the defendant's term of imprisonment
. . . .”). Mr. Sirois had been released from custody on
June 1, 2015 and therefore the two-level reduction would not
have been available to him.
addition, the Sentencing Commission made it clear that
“[i]n no event may the reduced term of imprisonment be
less than the term of imprisonment the defendant has already
served.” Id. § 1B1.10(b)(2)(C). As Mr.
Sirois had already served his full term of incarceration by
November 1, 2015, this provision prohibits his getting an
overserved time credit.
Mr. Sirois is seeking to have his original sentence altered
so that he can receive a credit against the revocation
sentence. Even though this argument was available to him on
August 7, 2017, when the Court imposed sentence on the
revocation petition, Mr. Sirois did not raise it.
Revocation Tr. at 1-35. Nor did he raise it with the
Court of Appeals when he appealed his revocation sentence.
United States v. Sirois, 898 F.3d 134, 134-39 (1st
Court DENIES Ricky Sirois' Motion to Reduce Sentence (ECF
No. 400) and his ...