Opinion
Case No. 3:09cr181 (1)
01-17-2014
UNITED STATES OF AMERICA, Plaintiff, v. ELMO BAILEY, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR
DOWNWARD DEPARTURE FOR POST-INCARCERATION
REHABILITATION (DOC. #86) FOR LACK OF JURISDICTION/
AUTHORITY TO RENDER THE RELIEF SOUGHT
Defendant has filed a pro se Motion, seeking a downward departure from his 18-year sentence imposed on January 5, 2011, for post-incarceration rehabilitation.
Pursuant to the information attached to the Defendant's Motion, it appears that he is making every effort to put his life on the right track to becoming a law-abiding contributing citizen of his community. However, his Motion for Downward Departure is overruled, not upon its merits, but because the Court is wholly and totally without the jurisdiction to grant such a motion. Other than the ability to correct clerical errors within a short period of time following sentencing, the Court totally loses jurisdiction to reduce the sentence imposed, unless the Government has requested the Court to do so by way of the Defendant's substantial assistance to the Government in the investigation and prosecution of others. Even then, the Court's power to so reduce the sentence expires one year after sentencing. See, United States v. Garcia-Emanuel, 112 Fed.Appx. 713 (10th Circuit Court of Appeals, 2004) (district court lacked authority to reduce inmate's sentence on basis of post-sentence rehabilitation); United States v. Dugan, 57 F.Supp. 2d 1207 (District of Kansas, 1999) (defendant's post-sentencing rehabilitation and education were not circumstances that provided basis for relief under motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. ¶2255); United States v. Dicks, 2006 WL 1438524 (District of Connecticut 2006) (reduction of sentence for post-conviction rehabilitation does not provide an independent basis for relief under 28 U.S.C. ¶ 2255, 18 U.S.C. ¶ 3582(c) or Rule 35 of the Federal Rules of Criminal Procedure); Eaves v. United States, 210 WL 3283018 (Eastern District of Tennessee, 2010) (post-incarceration rehabilitation are not unusual or extraordinary circumstances such as would warrant a reduction in sentence, pursuant to 28 U.S.C. ¶ 2255, 18 U.S.C. ¶ 3582(c) or Federal Rule of Criminal Procedure 35).
WHEREFORE, based upon the aforesaid, this Court overrules the Defendant's pro se Motion for Downward Departure for Post-incarceration Rehabilitation (Doc. #86).
___________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of record
Elmo Bailey, Reg. No. 45029-061, United States Penitentiary Tucson, PO Box 24550,
Tucson, AZ 85734