Opinion
Case No. CR-89-0103-F.
December 4, 2006
ORDER
Two motions are before the court: defendant's motion for modification of sentence pursuant to 18 U.S.C. § 3582(e)(2), filed September 8, 2006 (doc. no. 660); and defendant's motion to withdraw plea of guilty, filed September 25, 2006 (doc. no. 663) (a letter construed by the court as a motion, see order at doc. no. 665). Both motions have been fully briefed and are ready for determination.
I. Motion for Modification of Sentence
Plaintiff's most recent previous motion to modify his sentence was denied by this court on October 4, 2005. (Doc. no. 658.) The instant motion for modification of plaintiff's sentence argues that retroactive application of Amendment 506 to the Sentencing Guidelines affects the determination of the statutory maximum of his offense of conviction. However, United States v. Novey, 78 F.3d 1483 (10th Cir. 1996) held Amendment 506 invalid as not within the scope of the Sentencing Commission's authority. Id. at 1491. Plaintiff's reply brief argues that Novey should not apply because the government chose not to file a notice of enhancement pursuant to § 851(a)(1) in his case. Without passing on the accuracy of plaintiff's statement, the court rejects his argument as nothing in Novey suggests that Amendment 506 is anything other than invalid, regardless of exactly how events regarding sentencing unfolded. Accordingly, after careful consideration of the parties' arguments, defendant's motion to modify is DENIED.