Opinion
Case No. 88-20075.
April 29, 2009
MEMORANDUM AND ORDER
Abelee Bronson was convicted by a jury in 1989 of armed robbery, and he was sentenced to 262 months in prison. His case is once again before the court on his Petition Under 18 U.S.C. § 3582(c)(2) for Reduction of Sentence (Doc. 68) and a Motion for Transcripts (Doc. 71). The court previously issued an Order setting a date for a response to be filed by the government and a reply by the movant (Doc. 70). That order is now vacated and, for the reasons set for below, both of these motions are denied.
1. Motion for Reduction
Mr. Bronson suggests that his sentence should be reduced pursuant to this court's authority under 18 U.S.C. § 3582(c), which allows a court to modify a sentence "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
The policy statement to which § 3582(c) refers is § 1B1.10 of the United States Sentencing Guidelines. Section 1B1.10 allows a court to reduce a term of imprisonment under § 3582(c) provided that the guideline range applicable to the defendant was subsequently lowered by one of the specific amendments to the Guidelines listed in § 1B1.10(c). U.S.S.G. § 1B1.10(a)(1).
Mr. Bronson relies on Amendment 709, which modified § 4A1.1 and § 4A1.2 of the sentencing guidelines to change the way certain prior conviction affect a defendant's criminal history category. Mr. Bronson attempts to use Amendment 709 to argue that his sentence should have been imposed concurrently to a previous sentence he had received.
But Amendment 709 is not listed as a specific amendment covered by § 1B1.10, so it does not apply retroactively and thus may not serve as support for a § 3582 reduction in sentence. U.S.S.G. § 1B1.10.
2. Motion for Transcripts
Mr. Bronson also requests a copy of the transcript from his sentencing hearing so that he can prepare a reply to any response from the Government and for any future litigation issues in this case. Under 28 U.S.C. § 753(f), a defendant is entitled to a copy of his transcript if he demonstrates "that his suit is not frivolous and that the transcript is needed to decide the issue presented by the suit." Sistrunk v. United States, 992 F.2d 258, 259 (10th Cir. 1993); United States v. Williams, 2006 WL 2692826, at *2 (D. Kan. Sept. 19, 2006).
Mr. Bronson's request for a reduced sentence does not raise a nonfrivolous issue, as explained above. And his suggestion that there might be future litigation issues in this case does not satisfy the requirement under § 753(f) because defendant does not have a constitutional right to a transcript for "exploratory use." Hines v Baker, 422 F.2d 1002, 1007 (10th Cir. 1970).
IT IS THEREFORE ORDERED BY THE COURT that the Order setting deadlines (Doc. 70) is vacated.
IT IS FURTHER ORDERED that defendant's Petition Under 18 U.S.C. § 3582(c)(2) for Reduction of Sentence (Doc. 68) is denied.
IT IS FURTHER ORDERED that defendant's Motion for Transcripts (Doc. 71) is denied.