Opinion
No.: 3:10-CR-145-TAV-HBG-3
06-28-2017
UNITED STATES OF AMERICA, Plaintiff, v. BRENDA LYNN FOWLER, Defendant.
MEMORANDUM OPINION AND ORDER
This criminal case is before the Court on the defendant's pro se Motion for Reconsideration [Doc. 139] to which the government responded [Doc. 141]. In this motion, the defendant asks that the Court grant her a sentence reduction based on her "post-conviction rehabilitation" [Doc. 139 p. 1]. In support of this argument the defendant submits that she has received 26 certificates while incarcerated.
As an initial point, the Court notes that it may only modify a sentence when statutorily permitted. See United States v. Ross, 245 F.3d 577, 585 (6th Cir. 2001) ("The authority of a district court to resentence a defendant is limited by statute."). In her motion, the defendant asserts that the Court is empowered to reduce her sentence pursuant to 18 U.S.C. § 3742(e). This statutory provision, however, describes the manner of review conducted by an appellate court after a defendant appeals her sentence. See 18 U.S.C. § 3742. Because the defendant is not currently challenging her sentence on direct appeal, 18 U.S.C. § 3742(e) is not applicable in this case. See United States v. Auman, 8 F.3d 1268, 1271 (8th Cir. 1993) (noting different provisions of 18 U.S.C. § 3742 and stating that they "are the basis for appellate review of a district court's sentencing decisions" and that they "do not grant jurisdiction to a district court to review a final sentence").
The defendant also contends that the Supreme Court decision Pepper v. United States, 562 U.S. 476 (2011), authorizes the Court to consider her post-sentencing rehabilitation and reduce her sentence accordingly [Doc. 139 p. 1]. In Pepper, however, the Supreme Court stated that a district court could consider post-sentencing rehabilitation only in the event that the "initial sentence was set aside on appeal." See id. at 504. Because the defendant's sentence in this case has not been set aside on appeal, Pepper does not authorize the Court to consider post-sentencing rehabilitation and reduce the defendant's sentence.
In sum, the Court finds that defendant's post-sentencing rehabilitative efforts do not provide the Court with any basis to reduce the defendant's sentence. As such, the Court hereby DENIES the defendant's pro se Motion for Reconsideration [Doc. 139]. In addition, the Court notes that the defendant has a pending pro se Motion for Minor-Role Amendment Reduction [Doc. 143] to which the government has not yet responded. The Court hereby DIRECTS the government to respond to the defendant's Motion for Minor-Role Amendment Reduction [Doc. 143] within twenty-one (21) days of entry of this order.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE