Opinion
No. 3:99-CR-076-K(08), (No. 3:04-CV-2526-K).
March 3, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The Findings, Conclusions, and Recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
Statement of the Case:
Movant is confined as an inmate of FCI El Reno, Oklahoma. On July 12, 1999 Esquivel-Torres plead guilty to conspiracy to distribute and possess with the intent to distribute a controlled substance in Cause Number 3:99-CR-0076-K(08), pursuant to a plea agreement whereby the government dismissed the remaining charges and filed a motion for downward departure. The court accepted his plea on the same day. Sentence was imposed by the United States District Court for the Northern District of Texas on December 30, 1999. In his motion, Esquivel-Torres seeks a modification of his sentence pursuant to 18 U.S.C. § 3582(e)(2). Findings and Conclusions:
This court and the government in its response filed on January 12, 2005 construed Defendant's Motion for Modification of Sentence as a challenge to the Bureau of Prisons' ("BOP") computation of his sentence, specifically the BOP failure to give him credit for time spent in state custody. However, as made clear in his response to the government's response Esquivel-Torres seeks relief predicated solely on 18 U.S.C. § 3582(c)(2).
Because Movant is requesting reconsideration of his sentence in light of a subsequent amendment to the sentencing guidelines, he has properly framed his claim under § 3852. See United States v. Levay, 76 F.3d 671, 672 n. 1 (5th Cir. 1996), United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). The docket should therefore be modified to reflect Movant's motion as filed under § 3582.
§ 3582 allows sentence modification only in specific circumstances, including when the sentencing range of a conviction is subsequently lowered by Sentencing Commission "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." § 3582(c)(2). Although Movant argues that U.S.C.G. Amendment 660 constitutes a lowering of his sentencing range as contemplated by § 3582(c)(2), U.S.S.G. Amendment 660 is not listed in U.S.S.G. § 1B1.10(c). Esquivel-Torres is therefore not entitled to have his sentence modified pursuant to § 3582(c)(2). E.g. United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996). Movant claims that Amendment 660 should be read as retroactive and he is thus entitled to relief ( See Movant's Resp. to the Government's Second Resp.) but "if an amendment is not specifically listed in U.S.S.G. § 1B1.10(c), a reduction of sentence under § 3582(c)(2) is not consistent with the Sentencing Commission's policy statement." Drath, 89 F.3d at 218. Therefore, Esquivel-Torres is not entitled to a reduction in his sentence. RECOMMENDATION :
For the foregoing reasons, it is recommended that the District Court administratively close No. 3:04-CV-2526-K and order that Esquivel-Torres's motion, the Government's Motion to Dismiss filed on November 19, 2004, Movant's response filed on December 6, 2004, the Government's reply filed on December 15, 2004, Movant's response filed on January 3, 2005, and Movant's motion for judgment on the pleadings filed on January 24, 2005 (all pleadings formerly filed in No. 3:04-CV-2526-K) be transferred and docketed in No. 3:99-CR-076-K.
It is further recommended that Esquivel-Torres's motion for modification of sentence pursuant to 18 U.S.C. § 3582 be denied.