Opinion
No. 00-40118-01-SAC
December 13, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion requesting the court to reconsider its denial of the minor role adjustment in light of the United States Sentencing Commission's Amendment 635 effective November 1, 2001, which changed the commentary to U.S.S.G. § 3B1.2 on mitigating roles. (Dk. 188). The defendant pleaded guilty to a single count indictment charging him with conspiracy to manufacture methamphetamine, and the court on August 24, 2001, sentenced the defendant to a term of imprisonment of 121 months which was the bottom of the applicable sentencing guideline range. The defendant did not appeal his sentence and filed no motion attacking his sentence pursuant to 28 U.S.C. § 2255. In his motion, the defendant contends the court has jurisdiction to entertain his motion under the federal question statute, 28 U.S.C. § 1331, and the federal civil rights statute, 28 U.S.C. § 1343. The government responds that the court lacks jurisdiction to reconsider its ruling and that even assuming jurisdiction existed the amendment is inapplicable to the sentencing court's stated reasons for denying this role adjustment.
This amendment clarified "that § 3B1.2 does not automatically preclude a defendant from being considered for a mitigating role adjustment in a case in which the defendant is held accountable under § 1B1.3 solely for the amount of drugs the defendant personally handled." U.S.S.G. app. C, amend. 635 at p. 232 (Supp. 2002). The amendment results "in the context of a drug courier, for example, that the court is not precluded from considering a § 3B1.2 adjustment simply because the defendant's role in the offense was limited to transporting or storing drugs, and the defendant was held accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or stored." Id.
The sentence was one month longer than the mandatory minimum term of imprisonment of 120 months which the defendant was facing by reason of 21 U.S.C. § 841(b)(1)(A).
The Tenth Circuit has consistently recognized that "a district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Section 3582(c) of Title 18 "provides three avenues through which the court may `modify a term of imprisonment once it has been imposed.'" United States v. Blackwell, 81 F.3d at 947 (quoting 18 U.S.C. § 3582(c)). Those three narrow avenues are:
First, upon motion of the Director of the Bureau of Prisons, a court may reduce the term of imprisonment if it finds special circumstances exist. 18 U.S.C. § 3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if such modification is "otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." Id. § 3582(c)(1)(B). Finally, a court may modify a sentence if "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).
United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997). If the defendant's argued basis does not fall within one of these three limited avenues under § 3582(c), the court is without jurisdiction to consider the defendant's request. Id. The defendant's motion is not a civil action within the court's limited jurisdiction furnished either by the federal question statute, 28 U.S.C. § 1331, or the federal civil rights statute, 28 U.S.C. § 1343.
The first avenue, the special circumstances reduction based on medical condition, 18 U.S.C. § 3582(c)(1)(A)(i), (ii), "requires that a motion be brought by the Director of the Bureau of Prisons." United States v. Smartt, 129 F.3d at 541. The Director has not made any such motion in this case. Unable to meet this requirement, the defendant is ineligible for this first avenue.
The second avenue, modification expressly permitted by statute or Rule 35, 18 U.S.C. § 3582(c)(1)(B), requires the defendant to assert that the conditions for Rule 35 relief are present or to cite some statute authorizing a modification. United States v. Smartt, 129 F.3d at 541. None of the three subsections to Rule 35 applies here. United States v. Blackwell, 81 F.3d at 948 ((a) correct an illegal sentence, (b) reduce sentence for substantial assistance, or (c) correct a sentence within 7 days after imposition). The Tenth Circuit reads § 3582(c)(1)(B) "to permit modification of an imposed term of imprisonment only where a statute expressly provides for reduction of a previously imposed sentence." United States v. Smartt, 129 F.3d at 541-42. The court does not have jurisdiction under this second avenue.
The defendant's motion appears intended to address the third avenue, that is, the subsequent lowering of a guideline sentencing range. Under U.S.S.G. § 1B1.10, certain listed amendments to the guidelines are to be given retroactive effect, and a defendant may seek a reduction in his sentence because of a retroactive amendment under § 3582(c). The Tenth Circuit court has concluded that if an amendment to the Guidelines is not listed in subsection (c) of U.S.S.G. § 1B1.10, then the amendment may not serve as a basis for reducing a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993) ("The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction of sentence based on the amendment would not be consistent with the policy statement."); see also United States v. Torres, 99 F.3d 360, 362-63 (10th Cir. 1996) (affirmed denial of a § 3582(c)(2) motion for reduction of sentence because the amendment was not listed as having retroactive effect in U.S.S.G. § 1B1.10(c)), cert. denied, 520 U.S. 1129 (1997). Amendment 635 is not listed in U.S.S.G. § 1B1.10(c). The court is without jurisdiction under this third avenue. Finally, the court lacks the inherent authority to modify or resentence a defendant at any time or for any reason other than those provided by statute. United States v. Blackwell, 81 F.3d at 949.
Even assuming the court had jurisdiction to consider the merits of the this motion, the defendant would not be entitled to any relief. The sentencing court overruled the defendant's request for a mitigating role adjustment based on the lack of evidence to support such a finding. In so ruling, the court did not rely on or refer to any conclusion that the defendant was being held accountable for only those drugs he personally handled. Thus, the amendment would have no impact on the court's decision to deny this adjustment or on the sentence eventually imposed.
IT IS THEREFORE ORDERED that the defendant's motion pursuant to 28 U.S.C. § 1331 and 1343 is denied for lack of jurisdiction.