Opinion
CRIMINAL NO. 0:04-353 (CMC)
07-02-2013
United States of America, v. Kenneth Roshaun Reid, Defendant.
OPINION and ORDER
This matter is before the court on Defendant's motion "to re-open 3582(c)(2) motion." ECF No. 607. Defendant seeks to have this court apply to his case the recent decision of the Supreme Court, Alleyne v. United States, 570 U.S. ___________, 133 S. Ct. 2151 (U.S. June 17, 2013).
To the extent this is construed as a motion to reduce sentence, Rule 35(a) of the Federal Rules of Criminal Procedure permits a court to "correct a sentence that resulted from arithmetical, technical, or other clear error" within fourteen days after the oral announcement of the sentence. See Rules 35(a) and (c), Fed.R.Crim.P. The sentence was orally announced on August 2, 2006, and, accordingly, the deadline for any action by the court on a Rule 35(a) motion is well past. Therefore, the court is without jurisdiction to act upon Defendant's motion in this regard.
Apart from Rule 35(a), a district court has no jurisdiction to alter a defendant's term of imprisonment except as authorized by 18 U.S.C. § 3582 or 18 U.S.C. § 3742.
Title 18 United States Code § 3582(c) limits the court's authority to modify a final judgment that includes a sentence of imprisonment to three specific circumstances. See 18 U.S.C. § 3582(c) (the court can modify a judgment (1) upon motion of the Director of the Bureau of Prisons ("BOP") for statutorily-specified reasons, (2) upon motion of the government for substantial assistance, or (3) upon motion of the defendant or the BOP, or upon the court's own motion, because of a subsequent lowering of the applicable sentencing range). None of these circumstances applies to Defendant.
After an appeal, the court can modify a sentence if the sentence is found by the appellate court to have been imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, as provided for in 18 U.S.C. § 3742. Defendant appealed his conviction and sentence, which were affirmed. United States v. Reid, 523 F.3d 310, 313 (4th Cir. 2008).
Defendant's motion does not allege that any of these circumstances applies. The court lacks jurisdiction to modify Defendant's sentence, and therefore, Defendant's motion is dismissed for lack of jurisdiction.
Additionally, pursuant to United States v. Goodwyn, 596 F.3d 233, 236 (4th Cir. 2010), "the clear intent of § 3582 is to constrain postjudgment sentence modifications . . . ." Section § 3582(c) "gives a district court one—and only one—opportunity to apply the retroactive amendments and modify the sentence." United States v. Mann, 435 F. App'x254, 254 (2011) (citing Goodwyn, 596 F.3d at 236); see also United States v. Redd, 630 F.3d 649, 651 (7th Cir.2011). Accordingly, this court is without jurisdiction to entertain Defendant's motion for relief under § 3582(c)(2).
Defendant's motion is, in reality a second or successive motion for relief under § 2255, as he challenges his conviction and sentence on a variety of grounds unrelated to any relief available under Amendment 750 to the United States Sentencing Guidelines. Defendant's failure to seek permission to file a second or successive motion in the appropriate court of appeals prior to the filing of the motion in the district court is fatal to the outcome of any action on the motion in this court. Prior to filing a second or successive motion under § 2255, Defendant must obtain certification by a panel of the Fourth Circuit Court of Appeals allowing him to file a second or successive motion. As provided in 28 U.S.C. § 2244, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). This he has not done.
Defendant's motion is dismissed without prejudice as this court is without jurisdiction to consider it.
IT IS SO ORDERED.
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CAMERON McGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
July 2, 2013