Opinion
Case No: 6:09-cr-78-Orl-31DCI
01-05-2017
UNITED STATES OF AMERICA Plaintiff, v. SHAUN SHIVA RAMROOP Defendant.
REPORT AND RECOMMENDATION
The pro se defendant is before the Court on a motion to reduce his sentence pursuant to Title 18, United States Code, Section 3582(c)(2), on the basis of Amendment 801 to the United States Sentencing Guidelines, effective November 1, 2016. The Court sentenced the defendant in May 2010. Docs. 91; 93. The defendant now seeks to have the Court apply Amendment 801 retroactively to reduce his sentence. Amendment 801 affected § 2G2.2 of the Guidelines and, in particular, a five-level enhancement that the defendant received in relation to his distribution of child pornography.
As the Eleventh Circuit explained, albeit in an unpublished opinion:
A district court may modify a term of imprisonment in the case of a defendant who was sentenced based on a sentencing range that subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The amendment to the Guidelines must be retroactively applicable, however, and only amendments listed in U.S.S.G. § 1B1.10(c) qualify as retroactively applicable amendments warranting § 3582(c)(2) relief. U.S.S.G. § 1B1.10(a)(1), (c); United States v. Armstrong, 347 F.3d 905, 907-08 (11th Cir.2003).United States v. Jones, 342 F. App'x 497, 498 (11th Cir. 2009). The undersigned finds no basis to vary from the Circuit's reasoning in Jones. Amendment 801 "is not listed in § 1B1.10(c), and, therefore, it is not a retroactively applicable amendment that may be the basis for § 3582(c)(2) relief." Id. Accordingly, the Court cannot grant the relief requested by the defendant. The defendant's reliance upon Teague v. Lane, 489 U.S. 288 (1989) is misplaced, as Amendment 801 does not announce a new rule of constitutional law.
Accordingly, it is RECOMMENDED that the Court DENY the defendant's Motion for Sentence Reduction Pursuant to § 3582(c)(2).
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
Recommended in Orlando, Florida on January 5, 2017.
/s/_________
DANIEL C. IRICK
UNITES STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge
United States Marshal
United States Attorney
United States Probation Office
United States Pretrial Services Office
Pro Se Defendant