Opinion
CASE NO. 05-90003.
January 18, 2008
OPINION AND ORDER
I. INTRODUCTION
Before the Court is Defendant's Motion for Re-Sentencing (Doc. No. 38) in light of Sentencing Commission Amendment 706, approved Dec. 11, 2007, which allows courts to apply the Sentencing Guidelines' crack cocaine penalty reduction retroactively. Under 18 U.S.C. § 3582, the Court is authorized to modify the sentence 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." 18 U.S.C. § 3582(c)(2). Section 1B1.10(c) of the Sentencing Guidelines lists the applicable Sentencing Commission amendments under which a reduction is appropriate. U.S. SENTENCING GUIDELINES § 1B1.10(c).
Sentencing Commission Amendment 706 permits Courts to adjust older crack cocaine sentences downward in accordance with a recent amendment to the Sentencing Guidelines lessening the severity of crack cocaine offenses. Defendant was sentenced, however, under 18 U.S.C. § 924(c) for carrying a firearm during a drug trafficking crime. The counts of Defendant's indictment relating to drug offenses were dismissed by the government at the time of Defendant's sentencing.
Because Defendant is not serving a sentence eligible for retroactive reduction under Amendment 706 to the Sentencing Guidelines, the Court has no authority to reduce or modify the previously imposed sentence, and the Court shall DISMISS Defendant's Motion for Re-Sentencing.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Modify Sentence is DISMISSED.
IT IS SO ORDERED.