Opinion
No. 98-20020-06-KHV
July 9, 1999
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion To Change Method By Which Balance Of Her Sentence Is Served (Doc. #217) filed May 14, 1999. After carefully considering the motion and pertinent record, the Court finds that defendant's motion should be overruled.
Defendant filed an identical motion by mail on June 24, 1999.See Defendant's Motion To Change Method By Which Balance Of Her Sentence Is Served (Doc. #218) filed June 24, 1999. Defendant's second motion is overruled as moot.
Factual Background
On July 22, 1998, the government filed a superseding information which in one count charged defendant with knowingly distributing cocaine base (crack cocaine). Defendant pled guilty the next day. On November 30, 1998, the Court sentenced defendant to 57 months in prison. Defendant now requests that her sentence be modified so she may serve the remaining term in home confinement or at a halfway house.
Analysis
A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996); 18 U.S.C. § 3582(c). Congress has set forth three limited circumstances in which a court may modify a sentence: (1) upon motion of the Director of the Bureau of Prisons in certain extraordinary circumstances or where defendant has reached 70 years of age and has served at least 30 years in prison; (2) when "expressly permitted by statute or by Rule 35;" and (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582 (c)(1), (2); see Blackwell, 81 F.3d at 947-48. None of these exceptions apply here. Defendant has not cited any statute which authorizes the Court to modify her sentence. Moreover, Rules 35 and 36 of the Federal Rules of Criminal Procedure clearly do not authorize a substantive modification of defendant's sentence at this time. See id.; Fed.R.Civ.P. 35 (authorizes resentencing (a) to correct illegal sentence on remand from a court of appeals, (b) to reflect defendant's substantial assistance on motion of the government, and (c) to correct arithmetical, technical, or other clear error within seven days of sentencing); Fed.R.Civ.P. 36 (authorizes court to correct clerical-type errors). Finally, the Court does not have inherent authority to resentence defendant.See Blackwell, 81 F.3d at 949. For these reasons, the Court does not have jurisdiction to resentence defendant at this time.
Defendant also maintains that the Court should sentence her to home detention because the Bureau of Prisons has failed to effectuate the Family Unity Demonstration Project. See 42 U.S.C. § 13881, et seq. Defendant argues that she has not been selected for the project. Nothing in the statute, however, requires that the Bureau of Prisons select all eligible prisoners. Indeed, only 10 percent of the appropriations are earmarked for federal prisoners.See 42 U.S.C. § 13883(b)(2). Even if the Court assumes that the Bureau of Prisons has not fully implemented this project, the Court does not have jurisdiction to remedy the problem by resentencing defendant.
Even if the Court had authority to resentence defendant, it could not sentence her to home detention or a halfway house under the Sentencing Guidelines. After the Court granted the government's motion for a six-level departure, defendant's offense level was 23 with a criminal history category III. The Court sentenced defendant to the low end of the applicable sentencing range of 57 to 71 months, which fell within Zone D of the sentencing table. When the guideline range is within Zone D, "the minimum term shall be satisfied by a sentence of imprisonment." See U.S.S.G. § 5C1.1(f). For this additional reason, the Court declines to resentence defendant to home detention or a halfway house.
IT IS THEREFORE ORDERED that Defendant's Motion To Change Method By Which Balance Of Her Sentence Is Served (Doc. #217) filed May 14, 1999, be and hereby is OVERRULED.
IT IS THEREFORE ORDERED that Defendant's Motion To Change Method By Which Balance Of Her Sentence Is Served (Doc. #218) filed June 24, 1999, be and hereby is OVERRULED as moot.