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United States v. Craig

United States District Court, S.D. Alabama, Southern Division

July 27, 2018

UNITED STATES OF AMERICA,
v.
CORNELIUS KENYATTA CRAIG, Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Cornelius Kenyatta Craig moves, pursuant to 18 U.S.C. § 3582(c)(2), for a modification of his prison term. (Doc. 335). Craig's pro se motion seeks, [1] among other things, (1) appointment of counsel, (2) in forma pauperis status, and (3) a modification of his sentence. (Doc. 335 at 8). For the reasons explained below, Craig's motion is due to be DENIED.

         I. Background

         In June 1998, Craig and several codefendants were indicted in Criminal Action Number 98-00099 which charged fifteen counts, including conspiracy, carjacking and firearms offenses. Craig was charged in nine of those counts with three counts each of conspiracy to commit carjacking in violation of 18 U.S.C. § 371, carjacking in violation of 18 U.S.C. § 2119 and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). In August 1998, a separate indictment was returned against Craig and two codefendants in Criminal Action Number 98-00158. The second indictment charged Craig with one count each of conspiracy to commit carjacking, carjacking and using and carrying a firearm during and in relation to a crime of violence. The two indictments were consolidated for trial. Craig was convicted of all of the counts with which he was charged and was sentenced to a total of 931 months.

         II. Craig's Motion

         a. Appointment of Counsel

         The Eleventh Circuit has held that a defendant has neither a constitutional nor a statutory right to counsel in § 3582(c)(2) proceedings. See United States v. Webb, 565 F.3d 789, 794-95 (11th Cir. 2009) (“there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion”); United States v. McCants, 2012 WL 13054272, at *2 (S.D. Ala. May 16, 2012) (“It is well settled that there is no right to appointed counsel in connection with § 3582(c)(2) motions.”). “[T]he decision to appoint an attorney is left to the discretion of the district court.” Webb, 565 F.3d at 795. Defendant's motion for appointment of counsel (Doc. 74) is DENIED.

         b. IFP Status

         The Court is unaware of any need to grant Craig's motion with respect to his IFP status.[2]This is neither an appeal nor a § 2255 motion.[3] Therefore, Craig incurred no fee in filing the instant motion, and no fee need be waived.[4] The IFP motion is therefore MOOT.

         c. Prison Term Modification

         Craig focuses his argument at a four-level increase for bodily injury. In the Pre-Sentence Investigation Report (PSR), the Probation Officer included a four-level enhancement of Craig's total offense level. The Court applied the enhancement at sentencing.[5] His PSR provides that,

Pursuant to the provisions found in U.S.S.G. § 2B3.1(b)(3)(B), if any victim sustained serious bodily injury, the offense is increased four levels. According to the investigating agent, the victim was shot in the shoulder and experienced ‘shock trauma.' He was taken to the hospital for treatment, and was subsequently released.

         Craig argues that he “was never found to be the actual shooter” according to the PSR, the indictment, or the jury. (Doc. 335 at 4). Craig further argues that no other co-conspirator received a serious bodily injury enhancement. (Doc. 335 at 4-5). Craig argues the lack of clarity over which co-conspirator actually shot the victim means his offense level should not have been enhanced by four points.

         His original guideline range, based on his total offense level of 30, was a range of imprisonment from 121-151 months. (1:98-cr-00158-KD-M-2 Doc. 19 at 6).[6] Craig argues the loss of four points to his total offense level now means it is 28 (but since his total offense level was actually 30 (and not 32 as he argues), the adjusted level would be 26). And ...


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