Opinion
C.A. Nos. 3:05-CV-97 (HL), 18 U.S.C. § 3582, Case No. 3:96-CR-08 (HL).
March 9, 2006
ORDER DENYING CERTIFICATE OF APPEALABILITY
On November 3, 2005, Petitioner Boswell filed the above styled Motion For Modification Of Sentence pursuant To 18 U.S.C. § 3582(c)(2) contending that United States Sentencing Guideline Amendment 599, in conjunction with the Supreme Court's holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), "allows for modification of sentence . . . And fundamental fairness would suggest a lessening in Boswell's term of imprisonment." [Document 301]. Petitioner neither mentioned Amendment 505 nor raised in other guideline amendment in his § 3582 Motion. However, in the Report and Recommendation made to the District Court Judge [Document 306], it was noted that U.S.S.G. Amendment 505, effective 1994, was used in the Pre-Sentence Report to determine an Offense Level of 38 by drug amount calculations for Petitioner's 1997 guideline range sentence. Id., at 3. However, the Report and Recommendation concluded that Petitioner Boswell's sentence was actually issued under mandatory statutory requirements as a Career Offender, and not under any of the sentencing guideline calculations. Id.
Petitioner Boswell disingenuously asserted in his Objections [Document 307] to the Report and Recommendation that, "The Magistrate judge on page 3 states that the 1994 Guideline Amendment 505 does apply, resulting in a Level 38 and a lower sentence." He has now filed a Notice of Appeal [Document 312] of the District Court adverse decision, which he titles "Notice of Appeal Final Order As To Amendment 505 of the Sentencing Guidelines." Construing his Notice of Appeal as an Application for Certificate of Appealability, the court finds that —
Under 28 U.S.C. § 2253(c), a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right; Petitioner Boswell has made no such showing, and his Application For Certificate of Appealability is, therefore, DENIED. Petitioner's Motion for Leave to Proceed In Forma Pauperis is also DENIED AS MOOT.
SO ORDERED.