United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
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,
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.
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.
Appointment of Counsel
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.
Court is unaware of any need to grant Craig's motion with
respect to his IFP status.This is neither an appeal nor a §
2255 motion. Therefore, Craig incurred no fee in filing
the instant motion, and no fee need be waived. The IFP motion is
Prison Term Modification
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. 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.
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.
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). 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 ...