Opinion
Case No.: CR-2-03-139.
July 27, 2009
ORDER
This matter is before the Court on Defendant Kimberly A. Westmoreland's pro se Motion for Modification or Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(1) (Doc. 43). This Motion was filed on January 20, 2008. On March 25, 2009, the Government filed its response in opposition to Defendant's Motion to Reduce Sentence (Doc. 45). The Motion is now ripe for review.
Pursuant to this Court's General Order No. 08-03, filed February 22, 2008, the United States Attorney's office, the Federal Public Defender, and the Probation Department conducted a review of potential defendants who may be eligible for sentence reductions under the retroactivity provision of 18 U.S.C. § 3582(c). Defendant Westmoreland's case has been reviewed and all agree that she is not eligible for a reduction of sentence pursuant to Amendment 706 of the Sentencing Guidelines because she received the mandatory minimum sentences for her crimes.
Defendant was charged with conspiracy to distribute and possess with intent to distribute over fifty grams of cocaine base and carrying a firearm in relation to a drug trafficking crime. She was sentenced to 120 months in violation of Count I, 21 U.S.C. § 841(b)(1)(A), and 60 months for violation of Count II, 18 U.S.C. § 924(c).
Defendant requests the Court consider several cases in support of her request for reduction of sentence. First, in United States v. Whitley, 529 F.3d 150 (2nd Cir. 2008), the court held that a ten year consecutive sentence for discharge of a firearm in the course of an armed robbery should not have applied to a defendant who was already subject to a fifteen year minimum sentence as an Armed Career Criminal. Defendant also cites to United States v. Thongsophaporn, 503 F.3d 51 (1st Cir. 2007) and United States v. Rodriquez, 128 S.Ct. 1783 (2008), in support of her argument that a defendant who is subject to a greater mandatory minimum, cannot also receive a § 924(c)(1)(A) enhancement. Defendant is requesting the Court vacate her current sentence and resentence her because the weapons enhancement she received is "inconsistent with the current interpretation of the Sentencing Guidelines." (Def.'s Mot. at 2).
The Court has reviewed Defendant's case in detail. However, generally, the Court has no jurisdiction to resentence a defendant. See United States v. Jordan, 162 F.3d 1, 2 (1st Cir. 1998). One of the few exceptions is found in 18 U.S.C. § 3582(c)(2), which allows for a reduction of sentenced based on a lowered sentencing guideline range. The caselaw cited by the Defendant does not affect the United States Sentencing Guidelines in a way that would make § 3582(c)(2) applicable to this case, and would not be retroactive to 2004. Therefore, since 18 U.S.C. § 3582(c)(2) does not apply to Defendant's case, the Court is unable to amend her sentence at this late date. Accordingly, Defendant's Motion for Reduction of Sentence is DENIED.
The Clerk shall remove Document 43 from the Court's pending motions list.