Opinion
4:19-CR-00624-01-JM
11-29-2023
UNITED STATES OF AMERICA v. BRANDON EVERETTE BROWN
ORDER
Defendant's Motion for Reconsideration and Motion Challenging the Constitutionality of 18 U.S.C. § 922(g) (Doc. Nos. 105, 106) are DENIED.
As set out in the November 7, 2023 Order, applying retroactive Guidelines Amendment 821 reduces Defendant's criminal history score from 29 to 28. However, his criminal history category remains VI, which means his guideline range has not changed.
Doc. No. 103.
See U.S.S.G 1.10 (a)(2) (“Exclusions.-A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if- . . . an amendment listed in subsection (d) does not have the effect of lowering the defendant's applicable guideline range.”).
Additionally, Defendant's plea agreement provides that he “waives the right to have these sentence modified pursuant to Title 18, United States Code, Section 3582(c)(2) ” Because Defendant knowingly and voluntarily entered into his plea agreement, including this waiver, he is not entitled to relief.
Doc. No. 35.
United States v. Cowan, 781 Fed.Appx. 571 (8th Cir. 2019) (affirming dismissal of a § 3582 (c)(2) motion when the record establish that the defendant knowingly and voluntarily entered the plea agreement).
Finally, Defendant argues that his § 922(g) conviction is unconstitutional after the United States Supreme Court ruling in New York State Rifle & Pistol Ass'n, Inc. v. Bruen. However, “to the extent that the right recognized in Bruen is a previously unavailable, new rule of constitutional law, Bruen has not been made retroactive to cases on collateral review by the Supreme Court.”
142 S.Ct. 2111 (2022).
In re Terry, No. 22-13615-C, 2022 WL 20033240, at *2 (11th Cir. Nov. 14, 2022).
IT IS SO ORDERED.