Opinion
CRIMINAL NO. 1:09-CR-0079-01
07-18-2017
UNITED STATES OF AMERICA, v. ROGER SEDLAK, Defendant
()
MEMORANDUM
The pro se defendant, Roger Sedlak, has filed a motion (Doc. 497) for a nunc pro tunc reduction in his sentence, asserting he is entitled under U.S.S.G. § 3E1.1 to a three-level reduction in his offense level for acceptance of responsibility. He relies on Amendment 775 to the sentencing guidelines, which became effective on November 1, 2013.
We lack the authority to grant relief. As we have explained to Defendant previously, federal courts have no inherent authority to modify a sentence at anytime. See Dillon v. United States, 560 U.S. 817, 819, 130 S.Ct. 2683, 2687, 177 L.Ed.2d 271 (2010)("A federal court generally 'may not modify a term of imprisonment once it has been imposed.'")(quoting 18 U.S.C. § 3582(c)); McMillan v. United States, 257 F. App'x 477, 479 (3d Cir. 2007) (nonprecedential)("We note that, as a general matter, a court cannot modify a term of imprisonment after it has been imposed without specific authorization.")(citing United States v. DeLeo, 644 F.2d 300, 301 (3d Cir. 1981)).
We do have authority under 18 U.S.C. § 3582(c)(2) to apply a sentencing-guidelines amendment retroactively to reduce a sentence. However, as we have also explained to Defendant, we can apply an amendment retroactively under section 3582(c)(2) only if it is listed in U.S.S.G. § 1B1.10(d). Amendment 775 is not listed there. A motion under 3582(c)(2) therefore cannot be made here. Indeed, on June 6, 2016, Defendant made the same motion under section 3582(c)(2) invoking Amendment 775, and we denied that motion for the same reason we give here. (Doc. 471, memorandum and order dated June 15, 2016).
Defendant asserts Amendment 775 is a clarifying one and thus can be applied retroactively. See United States v. Marmolejos, 140 F.3d 488, 491 (3d Cir. 1998). However, a clarifying amendment must be before the court in a procedurally proper way. See United States v. Hidalgo, 309 F. App'x 618, 621 (3d Cir. 2009) (nonprecedential)(observing that the clarifying amendment at issue in Marmolejos had been presented in a properly filed 28 U.S.C. § 2255 motion); United States v. Paulino, 678 F. App'x 57, 57 (3d Cir. 2017)(nonprecedential)(section 3582(c)(2) motion based on Amendment 802 to the guidelines cannot be granted when the amendment is not listed in subsection 1B1.10(d))(citing United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995)); United States v. McIntosh, No. 97-CR-203, 2007 WL 712869, at *2 n.7 (E.D. Pa. Mar. 7, 2007)(stating that a court need only decide whether an amendment is a clarifying one if the issue is presented on direct appeal or in a 2255 motion).
Defendant has already had a 2255 motion adjudicated and therefore needs the permission of the court of appeals to file another one. See 28 U.S.C. § 2255(h). --------
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge Date: July 18, 2017