Opinion
Case No. 05-3268-SAC, 99-40061-01-SAC.
December 13, 2005
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2). Defendant's motion contends that enhancements to his base level offense are unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), in violation of his Sixth Amendment right to a jury trial, because they were imposed by the judge rather than considered by a jury.
This motion was initially docketed as a § 2255 motion. Defendant subsequently requested that it be docketed and characterized a § 3582 motion instead, and the court did so. See Dk. 76, 77.
The statute invoked by defendant permits a court to modify a sentence upon motion of the defendant only in the event a "sentencing range . . . has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." 18 U.S.C. § 3582(c)(2). Defendant does not contend that any such action has been taken by the Sentencing Commission. Instead, defendant contends that Booker and Blakely render his sentence unconstitutional.
Section 3582(c)(2) does not permit a reduction in sentence based on Supreme Court decisions that are unrelated to an actual amendment of the guidelines. See United States v. Privette, 129 Fed. Appx. 897, 899, 2005 WL 995951, *1 (5th Cir.), cert. denied, 126 S. Ct. 295 (2005); Hayes v. United States, 2005 WL 1523491, at *2 (7th Cir. June 29, 2005); see also United States v. Burkins, 2005 WL 3278033, *1 (10th Cir. Dec. 5,2005) (rejecting Booker and Blakely claims and finding defendant not entitled to relief pursuant to 18 U.S.C. § 3582(c)(2) because his sentencing range was not lowered by the Sentencing Commission after he was sentenced); United States v. Clayton, 92 Fed. Appx. 703, 2004 WL 389465 at *2 (10th Cir. Mar 03, 2004) (finding "Apprendi-type claims cannot be brought under 18 U.S.C. § 3582(c)(2) for modification of a sentence, because they do not relate to a lowering of sentence ranges."); United States v. Culp, 2005 WL 1799252, *2 (D. Kan. 2005) (finding § 3582(c)(2) is not a statutory vehicle for advancing Booker and is not a means to attack the constitutionality of a sentence.) This court therefore lacks jurisdiction under Section 3582(c)(2) to modify defendant's sentence.
Although § 2255 may have provided a jurisdictional basis for the relief defendant seeks, district courts should not sua sponte recharacterize a post conviction petition as a § 2255 motion when, as here, the recharacterized petition would be an initial § 2255 motion. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); See also Castro v. United States, 540 U.S. 375 (2003) (Court must warn pro se litigant about consequences of recharacterizing a motion as a first § 2255 motion). Accordingly, and despite the government's approach to the motion, the court does not construe defendant's present motion as one pursuant to § 2255.
The court agrees with the government's assessment that defendant has not filed any § 2255 motion prior to the present motion. See Dk. 69 (initially filed as § 2255 motion); Dk. 75 (granting motion to delete all references to § 2255 in Dk. 69); Dk. 78, p. 2 (government's contention that no prior § 2255 motion has been decided by the court).
Nonetheless, had the court done so, defendant would not be entitled to relief because the Tenth Circuit has expressly held that neither Blakely nor Booker applies to an initial § 2255 motion. See United States v. Price, 400 F.3d 844, 849 (10th Cir.) ("[W]e hold that Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."), cert. denied, ___ S. Ct. ___, 2005 WL 3144122 (2005); United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) ("Thus, like Blakely, Booker does not apply retroactively on collateral review, and [petitioner's] claim may not be brought in this initial habeas review under 28 U.S.C. § 2255.").
The court does not construe defendant's motion as one under section 2255, given the court's previous grant of defendant's request that the motion be construed instead as a § 3582 motion. The court makes this observation solely to foreclose a subsequent claim by defendant that the court erroneously failed to construe the present motion as a § 2255 motion.
IT IS THEREFORE ORDERED that defendant's motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) is denied.