U.S. v. Nguyen

Full title: UNITED STATES OF AMERICA, Plaintiff, v. HA T.T. NGUYEN, Defendant

Court: United States District Court, D. Nebraska

Date published: Aug 19, 2008

4:03CR3014 (D. Neb. Aug. 19, 2008)

Opinion

4:03CR3014.

August 19, 2008

MEMORANDUM AND ORDER

RICHARD KOPF, District Judge

The defendant seeks a reduction in sentence pursuant to18 U.S.C. § 3582(c)(2) and Amendment 709¹ to the Guidelines. (Filing 409.) The motion will be denied for two independent reasons.

1 She incorrectly describes this as "Amendment 12."

First, Amendment 709², effective November 1, 2007, came into being long after the defendant was sentenced in 2003, ³ and it is not listed as one of those amendments that the Sentencing Commission has made retroactive.⁴ Accordingly, there is an insuperable statutory bar to relief.⁵ United States v Peters , 524 F.3d 905, 906 (8^th Cir. 2008) (Amendment 709 was not retroactive and the district court was therefore barred from applying it). Second, since the amendment did not change the way the Guidelines dealt with the crimes of child abuse, assault and stealing money or goods (the crimes that put that defendant into criminal history category II), Amendment 709 would not help the defendant even if it were retroactive.⁶ Therefore,

2 See U.S.S.G. Supplement to Appendix C, at 235-241 (amendments to the Guidelines Manual effective November 1, 2004, through November 1, 2007) (Amendment 709).

3 S ee filing 194 for the judgment. See filing 192 for the presentence report.

4 U.S.S.G. § 1B1.10(c) (2008), reprinted in Supplement to the 2007 Guidelines Manual , at 2 (May 1, 2008) (policy statement listing amendments that are retroactive). Observe that U.S.S.G. § 1B1.10(a)(2)(A) provides that 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) if . . . none of the amendments listed in subsection(c) is applicable to the defendant. . . ." Reprinted in Supplement to the 2007 Guidelines Manual , at 1.

5 Since the Sentencing Commission did not make Amendment 709 retroactive, it would be inconsistent with the "applicable policy statements issued by the Sentencing Commission," and therefore inconsistent with the plain words of 18 U.S.C. § 3582(c)(2), to grant the defendant relief.

6 Compare the presentence report, filing 192, PSR ¶¶ 54-56, with Amendment 709, U.S.S.G. Supplement to Appendix C, at 235-241.

IT IS ORDERED that the defendant's motion (filing 409) is denied. Since this is not a "crack cocaine" reduction motion, the Clerk shall correct the text of the docket entry for filing 409 by striking the present description and inserting the following: "Motion for Reduction of Sentence."