Opinion
Case No. 08-CR-320
01-19-2015
UNITED STATES OF AMERICA Plaintiff, v. LISA MACK Defendant.
ORDER
On June 14, 2010, I sentenced defendant Lisa Mack to 180 months in prison on her guilty pleas to causing another to travel interstate to commit murder for hire, 18 U.S.C. § 1958(a), and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). The Seventh Circuit dismissed her direct appeal as frivolous. United States v. Mack, 461 Fed. Appx. 506 (7th Cir. 2012). On August 27, 2012, defendant filed a motion for modification of her sentence pursuant to 18 U.S.C. § 3582(c)(2), which I dismissed on August 30, 2012.
Defendant has now filed a motion for downward departure based on post-sentencing rehabilitation and extraordinary family circumstances pursuant to 18 U.S.C. § 3582(a) and U.S.S.G. § 5H1.6. I lack authority to reduce her sentence on these grounds.
Section 3582 provides three main exceptions to the general rule that the court may not modify a term of imprisonment once it has been imposed: (1) on motion of the Director of the Bureau of Prisons ("BOP"), if extraordinary and compelling reasons warrant a reduction; (2) on the government's motion pursuant to Fed. R. Crim. P. 35(b), based on the defendant's provision of substantial assistance; and (3) on the motion of the defendant, the BOP, or the court, based on a retroactively applicable amendment to the sentencing guidelines that reduces the defendant's imprisonment range. 18 U.S.C. § 3582(c). Defendant argues that her post-sentencing rehabilitation and her family circumstances are extraordinary and compelling, but I may not reduce a sentence on those grounds on a defense motion. See United States v. Clavielle, 505 Fed. Appx. 597 (7th Cir. 2013). Defendant cites Pepper v. United States, 562 U.S. 476 (2011), where the Court held that a district judge may consider the defendant's post-sentencing rehabilitation, but that case involved a remand after the defendant's sentence had been set aside on appeal, not a post-conviction motion by the defendant. Finally, U.S.S.G. § 5H1.6, which defendant cites as authority for reducing her sentence based on family circumstances, applies at the original sentencing but provides no basis for later modification. See United States v. Mendoza, 2012 U.S. Dist. LEXIS 17994 (E.D. Wis. Feb. 14, 2012).
Defendant's materials also indicate an attempt to cooperate, but no Rule 35 motion has been filed by the government.
THEREFORE, IT IS ORDERED that defendant's motion (R. 79) is DISMISSED.
Dated at Milwaukee, Wisconsin this 19th day of January, 2015.
/s Lynn Adelman
LYNN ADELMAN
District Judge