Montes v. U.S.

8 Citing cases

  1. U.S. v. Smith

    614 F. Supp. 2d 433 (S.D.N.Y. 2009)   Cited 2 times
    Holding that the defendant was not eligible for a reduction as the Court imposed a sentence of 110 months, a sentence that was below the defendant's career offender range but above the defendant's non-career offender range, after considering factors set forth in § 3553

    Accordingly, this Court has no authority to reduce defendant's sentence, because the applicable Guidelines range has not changed. Moreover, because the Supreme Court's Sixth Amendment sentencing jurisprudence (including Booker, which rendered the Guidelines advisory under section 3553(a)), did not affect Congress's and the Sentencing Commission's authority to determine whether and "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced," 28 U.S.C. § 994(u), such decisions have no impact on the limitations placed on retroactive sentence reductions under section 3582(c). See, e.g.,United States v. Diggins, 03 CR 801, 2008 WL 4054413, at *2 (S.D.N.Y. Aug. 27, 2008) (Booker and its progeny "do not render the Sentencing Commission's policy statements advisory under 3582(c)(2)") (collecting cases); United States v. Jiminez, 04 CR 329, 2008 WL 2774450, at *1 (S.D.N.Y. July 16, 2008); Montes v. United States, Nos. 07 Civ. 9869 04 CR 242, 2008 U.S. Dist. LEXIS 26985, at *6 (S.D.N.Y. April 3, 2008); Cruz, 560 F. Supp. 2d at 202;see also United States v. Wise, 515 F.3d 207, 221 n. 11 (3d Cir. 2008) ("Nothing in [Booker] purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines"); United States v. Hudson, 242 Fed. Appx. 16 (4th Cir. 2007); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005) ("neither § 3582(c)(2) norBooker provide[] a jurisdictional basis to reduce [defendant's] sentence").

  2. U.S. v. Guzman

    611 F. Supp. 2d 369 (S.D.N.Y. 2009)   Cited 2 times
    Finding a sentencing court's Genao analysis not to be a departure when "[a]t no time did [the sentencing court] characterize this as a departure, let alone calculate what the offense level would otherwise have been absent a departure . . . ."

    Moreover, because the Supreme Court's Sixth Amendment sentencing jurisprudence (including Booker, which rendered the Guidelines advisory under section 3553(a)), do not affect Congress's and the Sentencing Commission's authority to determine whether and "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced," 28 U.S.C. § 994(u), such decisions have no impact on the limitations placed on retroactive sentence reductions under § 3582(c). See, e.g.,United States v. Diggins, 03 CR 801, 2008 WL 4054413, at *2 (S.D.N.Y. Aug. 27, 2008) (Booker and its progeny "do not render the Sentencing Commission's policy statements advisory under 3582(c)(2)") (collecting cases);United States v. Jiminez, 04 CR 329, 2008 WL 2774450, at *1 (S.D.N.Y. July 16, 2008);Montes v. United States, Nos. 07 Civ. 9869 04 CR 242, 2008 U.S. Dist. LEXIS 26985, at *6 (S.D.N.Y. April 3, 2008); Cruz, 560 F. Supp. 2d at 202;see also United States v. Wise, 515 F.3d 207, 221 n. 11 (3d Cir. 2008) ("Nothing in [Booker] purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines"); United States v. Hudson, 242 Fed. Appx. 16 (4th Cir. 2007); United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005) ("neither § 3582(c)(2) nor Booker provide[] a jurisdictional basis to reduce [defendant's] sentence"). Further, even if Booker were applicable to proceedings brought pursuant to § 3582(c)(2), it nevertheless provides defendant with no basis for relief, because "Booker is not retroactive, i.e., it does not apply to cases on collateral review where [as here] the defendant's conviction was final as of January 12, 2005, the dateBooker was issued."

  3. U.S. v. Blakely

    CIVIL ACTION NO. 3:02-CR-209-K (N.D. Tex. Jan. 23, 2009)

    Indeed, many federal district courts have found that Booker is inapplicable at a § 3582(c)(2) proceeding, and the Sentencing Guidelines are mandatory. See, e.g., United States v. Bell, 2008 WL 5062335 (W.D. La. Nov. 24, 2008); Speights, 561 F. Supp. 2d 1277; United States v. Finney, 2008 WL 2435559 (W.D. Pa. June 16, 2008); United States v. Julien, 2008 WL 1933340 (D. Me. May 2, 2008); Montes v. United States, 2008 WL 906079 (S.D.N.Y. Apr. 3, 2008).

  4. U.S. v. Jones

    CRIMINAL ACTION NO. 2:95-cr-00051-01 (S.D.W. Va. Nov. 12, 2008)   Cited 1 times

    The contrary position — that Booker does not apply to properly raised § 3582(c)(2) motions — has found support in a great deal more jurisdictions. See, e.g., United States v. Moore, 541 F.3d 1323 (11th Cir. 2008); United States v. Ricco, No. 1:93-cr-19, 2008 U.S. Dist. LEXIS 63210 (W.D. Va. August 19, 2008); United States v. Menafee, No. 3:04-cr-138, 2008 U.S. Dist. LEXIS 60765 (D. Conn. Aug. 7, 2008); United States v. Robinson, No. 06-cr-34, 2008 U.S. Dist. LEXIS 49696 (W.D. Pa. June 26, 2008); United States v. Speights, 561 F. Supp. 2d 1277 (S.D. Ala. 2008); United States v. Davis, No. CR99-0073-LRR, 2008 U.S. Dist. LEXIS 43647 (N.D. Iowa June 3, 2008); United States v. Julien, 550 F. Supp. 2d 138 (D. Me. 2008); Montes v. United States, 07-cv-9869, 2008 U.S. Dist. LEXIS 26985 (Apr. 3, 2008); United States v. Miller, No. 2:05-cr-251, 2008 U.S. Dist. LEXIS 22732 (S.D. W. Va. March 21, 2008). The Fourth Circuit likewise has declined to adopt the Hicks court's view of post- Booker § 3582(c)(2) proceedings.

  5. U.S. v. Diggins

    03 cr 801 (KMW) (S.D.N.Y. Aug. 26, 2008)   Cited 7 times
    Holding that as a "significant majority" of courts have concluded, " Booker and Kimbrough do not render the Sentencing Commission's policy statement advisory under § 3582(c)"

    A significant majority of the courts to consider this question have held that because § 3582(c)(2) clearly authorizes sentence reductions only as "consistent with applicable policy statements issued by the Sentencing Commission," a court is bound by any such policy statement. See, e.g., United States v. Jimenez, No. 04 Cr. 329, 2008 WL 2774450 (S.D.N.Y. July 16, 2008); Montes v. United States, Nos. 07 Civ. 9869 04 Cr. 242, 2008 WL 906079 (S.D.N.Y. April 3, 2008);United States v. Cruz, No. 02 Cr. 0725, 2008 WL 539216 (E.D.N.Y. Feb. 27, 2008); see also United States v. Robinson, No. 06 Cr. 34, 2008 WL 2578043 (W.D. Pa. June 26, 2008) (citing cases). But see United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007); United States v. Shelby, No. 95 CR 69, 2008 WL 2622828 (N.D. Ill. June 30, 2008); United States v. Stokes, No. 98 Cr. 109, 2008 WL 938919 (M.D. Fla. Apr. 7, 2008).

  6. U.S. v. Jimenez

    04 Cr. 329 (JGK) (S.D.N.Y. Jul. 15, 2008)   Cited 2 times
    Holding that " Booker and Kimbrough do not apply to sentence reductions under § 3582(c)" and denying defendant's motion for a reduction of his sentence below the amended Guideline range

    Therefore, Booker and Kimbrough do not apply to sentence reductions under § 3582(c)(2), and the Court cannot reduce the defendant's sentence below the amended guideline range of 57 to 71 months. See, e.g., United States v. Osuna, No. CR-02-1327, 2008 WL 1836943 (E.D.N.Y. Apr. 22, 2008) (collecting cases);Montes v. United States, No. 07 Civ. 9869, 2008 WL 906079, at *2 (S.D.N.Y. Apr. 3, 2008); cf. Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) (per curiam) (Booker is not a valid basis for a motion pursuant to § 3582(c)(2)). But see United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).

  7. U.S. v. Strothers

    Criminal No. 03-195 (W.D. Pa. Jun. 19, 2008)   Cited 9 times
    Finding Hicks unpersuasive because it considered an earlier version of USSG § 1B1.10 that did not explicitly prohibit sentencing below the amended guideline range

    Accordingly, if Apprendi does not apply in a 3582(c)(2) proceeding, it would seem that Booker would likewise be inapplicable in such a limited proceeding. Indeed, almost all courts to have addressed the issue have held that Booker does not apply in such proceedings. See, e.g., United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005); United States v. Hudson, 242 Fed. Appx. 16 (4th Cir. 2007); United States v. Roberson, 2008 WL 2020209, at *2 (M.D. Pa. May 8, 2008); United States v. Julien, 2008 WL 1933340 (D. Me. May 2, 2008); United States v. Eugene, 2008 WL 1803628 (W.D. Va. Apr. 21, 2008); Montes v. United States, 2008 WL 906079, at *2 (S.D.N.Y. Apr. 3, 2008); United States v. Means, 2008 WL 718158, at *2 (M.D. Fla. Mar. 14, 2008); United States v. Cruz, 2008 WL 539216 (E.D.N.Y. Feb. 27, 2008); United States v. Hopkins, 2008 WL 504002, at *1 (N.D. Iowa Feb. 21, 2008). Cf. United States v. Swint, 2007 WL 2745767, at *3 n. 1 (3d Cir. Sept. 21, 2007).

  8. U.S. v. Robinson

    Criminal No. 06-34 Erie (W.D. Pa. Dec. 8, 2006)

    ); United States v. Julien, No. 01-CR-25-P-S, 2008 WL 1933340 at *1 (D. Me. May 2, 2008) (concluding that Sentencing Commission's policy statements "ultimately serve as a jurisdictional bar" to the imposition of a sentence below the defendant's amended Guidelines range); United States v. Clarke, No. 8:05-cr-306-T-23MSS, 2008 WL 1913899 (M.D. Fla. April 28, 2008) ("A re-sentencing under [Amendments 706, 711 and 712] . . . presents an occasion only to re-calculate the original guidelines by substituting an offense level two levels lower than the original offense level to determine whether the result reduces the applicable sentence . . ."); United States v. Eugene, Criminal Case No. 7:05cr00111-1, 2008 WL 1803628 (W.D. Va. April 21, 2008) at *1 (granting the defendant a reduction from his original sentence pursuant to § 3582(c)(2) but denying any further reduction below the amended Guidelines range on the ground that Booker and its progeny are inapplicable to motions under § 3582(c)(2)); Montes v. United States, Nos. 07 Civ. 9869(AKH), 04 Cr. 242(AKH), 2008 WL 906079 at *2 (S.D.N.Y. April 3, 2008) (Booker and Kimbrough do not apply to § 3582(c)(2) proceedings and "[a]ny reduction . . . can be no greater than that provided by the amendments to the Sentencing Guidelines"); United States v. Waller, No. 4:03-CR-226 CEJ, 2008 WL 822118 at *1-2 (E.D. Mo. March 26, 2008) ("Based on the language of the statute and the policy statement, the Court concludes that the maximum relief available to the defendant is the two-level offense level reduction authorized by the amendment to § 2D1.1."); United States v. Hall, No. CR02-1018-LRR, 2008 WL 824234 at *1 (N.D. Iowa Mar. 24, 2008) (Booker does not apply at a § 3582(c)(2) proceeding); United States v. Marquez, No. 02-cr-77-01-PB, 2008 WL 638251 at *2 (D.N.H. March 5, 2008) (finding "doubtful" defendant's theory that application of the crack amendment opens the door to a full re-sentencing and prospective application of Booker) (dicta); United States v. Cruz, No. 02-CR-0725 (CPS), 2008 WL 53