Opinion
CRIMINAL ACTION No. 02-20065-KHV
March 21, 2003
MEMORANDUM AND ORDER
This matter is before the Court on defendant's Motion [For] Reconsideration To Change, Correct Or Modify Sentence (Doc. #25) filed February 26, 2003. After carefully considering the motion and pertinent record, the Court overrules defendant's motion.
Defendant seeks oral argument on his motion. Oral argument will not materially assist in the disposition of the instant motion. Accordingly, defendant's request is overruled.
Factual Background
On July 2, 2002, a grand jury returned a one-count indictment which charged defendant with bank robbery. On September 9, 2002, he entered a plea of guilty to the charge. In the plea agreement, the United States agreed to recommend that defendant receive a sentence at the low end of the applicable sentencing guideline range. See Plea Agreement ¶ 2(c) (Doc. #15) filed September 9, 2002. Defendant's total offense level was 19, with a criminal history category IV, resulting in a sentencing range of 46 to 57 months. Pursuant to the plea agreement, the government recommended a sentence at the low end of the guideline range. On January 3, 2003, the Court sentenced defendant to 57 months in prison. Defendant did not appeal.Defendant now asks that his sentence be corrected to correspond with the government's sentencing recommendation.
Analysis
A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996); 18 U.S.C. § 3582(c). Congress has set forth three limited circumstances in which a court may modify a sentence: (1) upon motion of the Director of the Bureau of Prisons in certain extraordinary circumstances or where defendant has reached 70 years of age and has served at least 30 years in prison; (2) when "expressly permitted by statute or by Rule 35;" and (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(1), (2); see Blackwell, 81 F.3d at 947-48. None of these exceptions apply here. Defendant has not cited any statute which authorizes the Court to modify his sentence. Moreover, Rules 35 and 36 of the Federal Rules of Criminal Procedure clearly do not authorize a substantive modification of defendant's sentence at this time. See id.; Fed.R.Civ.P. 35 (authorizes resentencing (a) to correct illegal sentence on remand from court of appeals, (b) to reflect defendant's substantial assistance on motion of the government, and (c) to correct arithmetical, technical, or other clear error within seven days of sentencing); Fed.R.Civ.P. 36 (authorizes court to correct clerical-type errors). Finally, the Court does not have inherent authority to resentence defendant. See Blackwell, 81 F.3d at 949. For these reasons, the Court does not have jurisdiction to resentence defendant at this time.
Even if the Court had jurisdiction to alter defendant's sentence, it would not do so. Although the government agreed to recommend the low end of the guideline range, see Plea Agreement ¶ 2(c) (Doc. #15) filed September 9, 2002, the plea agreement reflects defendant's agreement that "the United States has advised him that the matter of sentencing is entirely within the purview of the sentencing court, and that the United States has not made any promises or representations to this defendant, or his attorney, regarding the sentence that might be imposed or the sentencing guideline level that would be appropriate." Id. ¶ 3. In his petition to enter a guilty plea, defendant also acknowledged that he understood that the sentence to be imposed was within the control of the Court. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #16) filed September 9, 2002. At the hearing on his petition to enter a plea of guilty, the Court also advised defendant that it was not bound by any recommendation in the plea agreement. Finally, Rule 11(e)(1)(B), Fed.R.Crim.P., specifically provides that a government recommendation of a particular sentence is not binding on the Court. Relying on United States v. Ferernandez, 960 F.2d 771 (9th Cir. 1992) and Fed.R.Crim.P. 11(e)(1)(C), defendant maintains that the Court was required to accept or reject the plea agreement (including the government recommendation) at the Rule 11 hearing. Fernandez does not apply because the plea in this case was not a conditional plea pursuant to Rule 11(e)(1)(C).
IT IS THEREFORE ORDERED that defendant's Motion [For] Reconsideration To Change, Correct Or Modify Sentence (Doc. #25) filed February 26, 2003 be and hereby is OVERRULED.
Dated this 21st day of March, 2003 at Kansas City, Kansas.