Opinion
No. 5:08-CR-100-1-F
06-20-2012
UNITED STATES OF AMERICA, v. CALVIN LAVAN CLARK, Defendant,
ORDER
Clark's Motion to Reconsider [DE-51] is DENIED. The order entered herein on June 8, 2012 [DE-49] denied Clark's Motion to Reduce his sentence pursuant to the 18:1 retroactive crack amendment to the advisory U.S. Sentencing Guidelines, under 18 U.S.C. § 3582(c)(2), because of his career offender status. Clark's Motion to Vacate, Set Aside or Correct his Sentence [DE-36] is being held in abeyance pending the Fourth Circuit Court of Appeals' decision in Powell v. United States, No. 11-6152.
Clark's § 2255 case is Clark v. United States, No. 5:o8-CR-1oo-1/5:11-CV-558-F,
Clark may not circumvent the limitations imposed on § 2255 actions by seeking Simmons relief in a § 3582(c)(2) motion. Clark already has had a prior § 2255 motion denied on the merits, see Order [DE-27]. Rather than deny the instant motion outright as successive, however, the court is reserving ruling until the Fourth Circuit announces a decision in Powell on the chance that the decision possibly could benefit Clark. Clark may renew his Motion to Reconsider [DE-51], if appropriate, after this court rules on his § 2255 Simmons motion, in light of the Government's Motion to Dismiss [DE-41].
The court regrets the piecemeal manner in which Clark's motions must be addressed. However, the unstable and unpredictable status of the controlling law leave no choice.
SO ORDERED.
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JAMES C. FOX
Senior United States District Judge