Opinion
Crim. Action No. 03-10188-02-WEB.
September 7, 2005
Memorandum and Order
Defendant Anthony Beckstrom filed a motion asserting a "Booker decision violation" and asking the court to "re-sentence this Petitioner to a reasonable sentence. . . ." Doc. 62. On August 2, 2005, the court directed defendant to clarify whether he wanted the court to treat his request as a motion to correct or modify a sentence under 28 U.S.C. § 2255. Doc. 63. Defendant has now filed a response in which he states that his motion is made pursuant to 18 U.S.C. § 3582(c)(2). Doc. 64.
Because § 3582(c)(2) only applies where a sentencing range has amended retroactively by the Sentencing Commission, it is not available to the defendant on his claim of a Booker violation. See United States v. Culp, 2005 WL 1799252 (D. Kan., June 30, 2005) ("The Booker decision may have changed the application of the guidelines, but it did not lower the guideline sentencing ranges."). Accordingly, § 3582(c)(2) provides no authority for altering the defendant's sentence, and his motion asking to be resentenced pursuant to that provision must be denied. See Culp, 2005 WL 1799252 at * 2; United States v. Joseph, 130 Fed. Appx. 357, 360, 2005 WL 1038766, *3 (11th Cir. 2005) ("[B]ecause § 3582(c)(2) authorizes only modification of a sentence as a result of an amendment to the guidelines made retroactive by the Sentencing Commissionand is not a means to attack the constitutionality of a sentence," it is not a statutoryvehicle for advancing Booker.); United States v. Privette, 129 Fed. Appx. 897, 899, 2005 WL 995951, *1 (5th Cir. 2005) ("By its plain language, § 3582(c)(2) is not implicated by a decision of the Supreme Court that is unrelated to an actual amendment of the guidelines.").
Conclusion.
Defendant's "Motion for Order" (Doc. 62) alleging a Booker violation is DENIED. IT IS SO ORDERED.