Opinion
Criminal Action No. 3:10-CR-60-01
12-16-2011
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT GILBERT COOK, Defendant.
(BAILEY)
ORDER DENYING DEFENDANT'S MOTION FOR REDUCED SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)
Pending before this Court is defendant's pro se Motion to Reduce Sentence (Doc. 22). In his motion, the defendant seeks a reduction in sentence pursuant to the 2010 Fair Sentencing Act. Finding the defendant not entitled to any relief under the amendments to the Sentencing Guidelines, this Court will deny a reduction in sentence.
This is a motion for a reduction in term of imprisonment under 18 U.S.C. § 3582(c)(2), which provides that a "court may not modify a term of imprisonment once it has been imposed except that . . . in the case of a defendant who has been sentenced to a term of imprisonment based upon a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission."
In considering reductions under § 3582(c)(2), neither the appointment of counsel nor a hearing is required. United States v. Legree, 205 F.3d 724 (4th Cir. 2000). As noted by the Fourth Circuit in Legree, "[a] motion pursuant to § 3582(c) 'is not a do-over of an original sentencing proceeding where a defendant is cloaked in rights mandated by statutory law and the Constitution.'" 205 F.3d at 730, quoting United States v. Tidwell, 178 F.3d 946, 949 (7th Cir.), cert. denied, 528 U.S. 1023 (1999).
"In determining the amended guideline range, this court will only make changes to the corresponding guideline provision, which is affected by Amendment [706], and all other guideline decisions will remain unaffected." United States v. Gilliam, 513 F.Supp.2d 594, 597 (W.D. Va. 2007), citing U.S.S.G. § 1b1.10.
In this case, the defendant was sentenced on January 24, 2011, after the amendments to the Sentencing Guidelines took effect. Accordingly, his original sentence was calculated using the 2010 amended guidelines. Accordingly, this Court will not reduce the defendant's sentence.
For the reasons stated above, the defendant's pro se Motion to Reduce Sentence (Doc. 22) is DENIED.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to the defendant and to all counsel of record herein.
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JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE