Opinion
95-CR-6066 CJS
January 10, 2002
DECISION and ORDER
Before the Court is defendant Gerald Gordon's motion [# 91] for a modification in his term of imprisonment, the government's response [# 94], defendant's motion [# 95] to amend his motion [# 91] that seeks modification of the term of his imprisonment and defendant's motion [# 96] for summary judgment. For the reasons stated below, defendant's applications are denied.
The Court sentenced the defendant on January 12, 1999, after accepting his plea of guilty to two counts of firearms violations under 18 U.S. Code § 922(g)(1). On one count, # 12, the Court sentenced him to forty-two (42) months of imprisonment, and on the other count, # 11, to a consecutive sentence of one hundred twenty (120) months. The total sentence amounted to one hundred sixty-two (162) months. In addition, the Court directed the defendant to pay a combined special assessment of one hundred dollars ($100.00) and waived any fine. The sentence also included supervised release for a term of three (3) years following defendant's discharge from imprisonment with conditions applicable to that period. Defendant specifically waived his right to appeal the Court's judgment.
Through his motions, defendant seeks re-sentencing so that the Court may retroactively apply a November 1, 2001 U.S. Sentencing Guidelines amendment. He specifically refers to Amendment 599. See Defendant's Motion for Summary Judgment at 2. In response, the government points out that Amendment 599 in the Supplement to Appendix C of the 2001 Guidelines Manual involves Guideline § 2K2.4 and 18 U.S. Code § 924(c) violations. The government argues that defendant's conviction was not under § 924 and, Guideline § 2K2.1, not § 2K2.4, therefore applies. See Government's Response to Defendant's Motion to Modify Term of Imprisonment at 2.
As an aside, defendant also argues in a letter dated May 10, 2001, that the Court should not accept the government's response, because it is untimely. However, defendant points out in his own letter that the government's response was not due until March 5, 2001, and the Court notes their response was filed with the Court on February 28, 2001. Thus, the Court will accept the response as timely filed.
The Government is correct. The defendant's conviction was under 18 U.S. Code § 922(g), not § 924(c). Consequently, the correct U.S. Sentencing Guideline is § 2K2.1. Cf. U.S.S.G. § 2K2.4 (applicable to § 924(c) violations) with U.S.S.G. § 2K2.1 (applicable to § 922 violations). Defendant's reliance on United States v. Smith, 196 F.3d 676, 679-82 (6th Cir. 1999) is misplaced. That case involved a conviction under § 924(c) and the Sixth Circuit held that the district court erred when it applied, "specific offense characteristics relating to defendant's possession and/or use of a weapon under § 2K2.1(b)(5) to enhance Smith's sentence for his § 924(c) offense." Id. at 681. The Sixth Circuit also held in Smith that the district court engaged in double-counting when it applied the § 2K2.1(b)(4) enhancement to Smith's § 924(c) sentence. No § 924(c) offense is involved in the instant case, and thus, Smith is inapposite.
Therefore, for the reasons stated above, it is hereby ORDERED, that defendant's motion filed with the Court on February 5, 2001, seeking reduction of his sentence is denied.
IT IS SO ORDERED.