Opinion
Criminal Case No. 04-cr-00514-WYD.
April 12, 2010
ORDER
THIS MATTER comes before the Court on the Defendant's pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (docket #2001), filed January 21, 2010. Initially, I note that on August 25, 2009, this case was transferred to me upon the resignation of District Judge Edward W. Nottingham.
Upon receipt of the pending pro se motion, I appointed CJA counsel to represent the Defendant in this matter. Additionally, I ordered counsel for the Defendant and the Government to file a response with the Court indicating whether the Defendant is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Both defense counsel and the Government filed responses with the Court indicating that the Defendant is not eligible for a sentence reduction. Specifically, counsel for the Government and defense counsel reviewed the Defendant's file and confirmed that in 2008, the Defendant filed a similar motion for a sentence reduction pursuant to 28 U.S.C. § 3582(c)(2) citing amendments to the crack cocaine guidelines (docket #1643). In 2008, Judge Nottingham denied Defendant's motion, noting his sentence was based upon a mandatory minimum of 120 months. ( See docket #1396).
I agree with Judge Nottingham's previous ruling that the Defendant is not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Sentencing Commission has not altered and cannot alter a statutory mandatory minimum sentence. See United States v. Novey, 78 F.3d 1483, 1486 (10th Cir. 1996); See § 1B1.10 app. note 1(A) (affirming that "a reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy statement if . . . the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another . . . statutory provision (e.g., a statutory mandatory minimum term of imprisonment)"). After carefully reviewing the above-captioned case and the pleadings submitted by the Defendant, defense counsel and the Government, I find that the Defendant's pro se motion for a sentence reduction should be denied.
Accordingly, it is
ORDERED that Defendant's pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), (docket #2001), is DENIED for the reasons stated in this Order.