U.S. v. Clingman

Full title: UNITED STATES OF AMERICA, Plaintiff, v. ARTHUR CARTER CLINGMAN, Defendant

Court: United States District Court, D. New Mexico

Date published: Aug 1, 2005

No. CR-96-411 BB (D.N.M. Aug. 1, 2005)

Opinion

No. CR-96-411 BB.

August 1, 2005

MEMORANDUM OPINION AND ORDER

BRUCE BLACK, District Judge

This matter is before the Court on Defendant's motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 1818) filed June 21, 2005. Defendant claims that his sentence should be reduced under the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). The motion will be denied.

Defendant's allegations do not support a claim for reduction of sentence under § 3582(c)(2). "A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996), quoted in United States v. Bedonie, ___ F.3d ___, ___, No. 04-4103, 2005 WL 1503891, slip op. at — (10th Cir. 2005). The statutory language invoked by Defendant is as follows:

The court may not modify a term of imprisonment once it has been imposed except that — . . . 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 pursuant to 28 U.S.C. [§] 994(o), . . . the court may reduce the term of imprisonment.

§ 3582(c)(2). Here, Defendant makes no allegation that the Commission has lowered the sentencing range applicable to his offense. He argues that Booker's rejection of "the preponderance of the evidence standard used to enhance his sentence . . ., in and of itself, can be taken as an amendment to the U.S.S.G." No doubt Booker has had a great impact on sentencings nationwide; nonetheless, the Commission did not lower Defendant's sentencing range, § 3582(c)(2), and no relief is available to Defendant under the statute, see, e.g., Bedonie, ___ F.3d ___, ___, 2005 WL 1503891, slip op. at ___.

IT IS THEREFORE ORDERED that Defendant's motion to reduce sentence pursuant to 18 U.S.C. § 3582(c) (Doc. 1818) filed June 21, 2005, is DENIED;

IT IS FURTHER ORDERED, in accordance with United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir. 2003), that Defendant is hereby NOTIFIED that a notice of appeal from an order denying a motion under 28 U.S.C. § 3582(c) must be filed within ten days after entry of the order.