Opinion
No. CR. S-01-375 WBS.
February 24, 2006
MEMORANDUM AND ORDER
On January 20, 2006, defendant David Lee Casey filed a Motion for Reduction of Sentence, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, upon the grounds of his age, background, allegedly aberrant behavior, and the alleged fact that incarceration has been sobering and detrimental to his health. After the government filed its response on January 25, 2006, on February 16, 2006 defendant filed a reply arguing that the motion should be considered under 28 U.S.C. § 2255 based on the United States Supreme Court's decision in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
Rule 35 allows for the court either to correct a sentence resulting from an arithmetical, technical, or other clear error, or to reduce a sentence upon the motion of the government. None of the grounds urged by defendant in his motion would support any relief under Rule 35.
Considering the motion alternatively under 28 U.S.C. § 2255, the Ashcroft case provides defendant with no basis for relief either. That case dealt with the constitutionality of the provisions of the Child Online Protection Act which prohibited commercial displays of sexually explicit materials harmful to minors on the World Wide Web. Here, Casey not only viewed and possessed child pornography, he also distributed it to others. The Supreme Court's decision in that case in no way affects the legality of his conviction.
IT IS THEREFORE ORDERED that defendant's Motion for Reduction of Sentence, considered both under Rule 35 of the Federal Rules of Civil Procedure and under 28 U.S.C. § 2255, be, and the same hereby is, DENIED.