Opinion
NO. 3-90-CR-0165-H
February 16, 2001
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Mervin Glen Anderson seeks leave to file a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). For the reasons stated herein, leave should be denied.
Defendant has filed at least six motions over the past seven years collaterally attacking his conviction and sentence. As a result, defendant has been barred from filing any additional lawsuits in federal court without first obtaining leave from a district judge. See ORDER, 12/8/99.
I.
Defendant was convicted of kidnapping and interstate transportation for the purpose of illegal sexual activity in violation of 18 U.S.C. § 1201 (a) 2421. Punishment was assessed at 30 years confinement followed by supervised release for a period of five years. His conviction and sentence were affirmed on direct appeal. United States v. Anderson, No. 91-1118 (5th Cir., Oct. 16, 1991). Defendant also sought post-conviction relief on numerous occasions. Now, he seeks leave to file a motion for sentence reduction based on a recent amendment to U.S.S.G. §§ 1B1.1 1B1.2.
II.
A defendant may seek a reduction in his sentence if a retroactive amendment to the sentencing guidelines results in a lower range of punishment. 18 U.S.C. § 3582(c)(2); see also United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). However, only amendments specifically enumerated in the policy statements are entitled to retroactive application. U.S.S.G. § 1B1.10(a) (policy statement); United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). In addition, the trial court is not required to apply an amendment retroactively. See United States v. Pardue, 36 F.3d 429, 430 (5th Cir. 1994), cert. denied, 115 S.Ct. 1969 (1995). The standard is abuse of discretion. United States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995); United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
III.
Defendant argues that he should be resentenced under Amendment 591 to the Sentencing Guidelines. This amendment modifies the basic rules for determining the guidelines applicable to a Chapter Two offense. Under the law in effect at the time defendant was sentenced, the trial court was given rather broad discretion to consider the actual conduct of the defendant in determining the applicable guideline. See U.S.S.G. §§ 1B1.1 1B1.2 (1990). Amendment 591 now requires the sentencing court to use the guideline applicable to the offense of conviction, except in certain limited circumstances. See U.S.S.G. App. C, amend 591 (May 1, 2000).
Defendant correctly notes that Amendment 591 is retroactive. See U.S.S.G. § 1B1.10(c). However, it is totally inapplicable to this case. Defendant was convicted of kidnapping in violation of 18 U.S.C. § 1204(a). The guideline applicable to this offense is U.S.S.G. §§ 2A4.1. See U.S.S.G. App. A. Section 2A4.1 provides for a base offense level of 24. Id. § 2A4.1(a). However:
If the victim was kidnapped, abducted, or unlawfully restrained to facilitate the commission of another offense: (A) increase by 4 levels; or (B) if the result of applying this guideline is less than that resulting from application of the other guideline to such other offense, apply the guideline for the other offense.Id. § 2A4.1(b)(5) (emphasis added). The commentary to this section makes specific reference to Section 2A3.1, entitled "Criminal Sexual Abuse," as an example of "another offense." See Add. to PSR ¶ II at 2. At sentencing, the trial judge found that "the alleged sexual abuse did indeed occur." (Tr-V at 70). Therefore, defendant's base offense level was calculated under U.S.S.G. § 2A3.1 rather than § 2A4.1.
Section 2A3.1 provides for a base offense level of 27. Defendant received an eight-level increase because a dangerous weapon was used and the victim was abducted. See U.S.S.G. § 2A3.1(b)(I) (b)(5). This resulted in a total offense level of 35.
Defendant argues that he is entitled to the benefits of Amendment 591 because the trial court considered his actual conduct rather than the offense of conviction in determining the applicable sentencing guideline. However, this amendment does not alter the court's obligation to apply "appropriate cross-references" contained in a particular guideline. See U.S.S.G. § 1B1.1(b). Section 2A1.4 specifically cross-references the guideline for "another offense" if the victim was kidnapped or abducted to facilitate the commission of that offense. Id. § 2A4.1(b)(5). In this case, the victim was kidnapped to facilitate the offense of criminal sexual abuse. Therefore, defendant was properly sentenced under U.S.S.G. § 2A3.1. Amendment 591 does not change that result.
RECOMMENDATION
Defendant's request for leave to file a motion for sentence reduction should be denied. The motion filed on February 13, 2001 should be stricken from the record.