Opinion
No. 1:91-cr-115 -05
August 11, 2003
MEMORANDUM
On May 12, 2003, defendant Darien McKibben ("McKibben") filed a pro se motion pursuant to 18 U.S.C. § 3582(c)(2) to modify his sentence of imprisonment. He argues that Amendment 439 to the UNITED STATES SENTENCING GUIDELINES ("U.S.S.G.") is a clarifying amendment to U.S.S.G. § 1B1.3 and should be applied retroactively to his case. McKibben raised essentially the same argument in a previous motion for collateral post-conviction relief under 28 U.S.C. § 2255 which was denied by this Court as time-barred by the statute of limitations. McKibben now seeks to resurrect his argument that Amendment 439 should be applied retroactively to reduce his sentence of imprisonment by bringing the instant motion under 18 U.S.C. § 3582(c)(2).
After reviewing the record, the Court concludes the motion will be DENIED as frivolous. 18 U.S.C. § 3582(c)(2) is not applicable to McKibben's case. McKibben is not entitled to any relief under § 3582(c)(2) because Amendment 439 has not been made retroactive by the United States Sentencing Commission. See U.S.S.G. § 1B1.10. The Court expresses no opinion whether Amendment 439 is a clarifying amendment.
It is not clear whether McKibben has served a copy of his motion on the United States Attorney for the Eastern District of Tennessee. McKibben's motion contains a certificate of service, but it merely states that he mailed a copy of the motion only to the United States District Court for the Eastern District of Tennessee. It appears that McKibben has failed to serve a copy of the motion on the United States Attorney. In any event, the Court finds it is not necessary for the United States Attorney to respond to the patently frivolous motion.
I. Background
On July 6, 1992, this Court entered the judgment of conviction against McKibben. He took a direct appeal to the United States Court of Appeals for the Sixth Circuit which affirmed the judgment. The Sixth Circuit rendered its opinion on February 14, 1994. United States v. Cutwright, 16 F.3d 1221 (Table, text at 1994 WL 43444 (6th Cir. Feb. 14, 1994)), cert. denied, 512 U.S. 1241 (1994).
In the meantime, while the case was pending on direct appeal in the Sixth Circuit, the United States Sentencing Commission adopted Amendment 439 effective November 1, 1992. McKibben could have raised the issue about what impact, if any, that Amendment 439 may have had on his sentence during the course of his direct appeal to the Sixth Circuit but he failed and neglected to do so. See, e.g., Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999). Amendments that clarify, rather than substantively change, the Sentencing Guidelines are given retroactive application on direct appeal. United States v. Cruz-Mendoza, 147 F.3d 1069, 1073 (9th Cir. 1998); United States v. Sanders, 67 F.3d 855, 856 (9th Cir. 1995).
On April 21, 2000, McKibben filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. In his § 2255 motion, McKibben for the first time raised the argument that Amendment 439 should be retroactively applied to correct and modify his sentence. This Court denied the § 2255 motion on January 16, 2001, on the ground that it was time-barred by the statute of limitations. In a memorandum opinion rendered on January 16, 2001, this Court observed that McKibben had the opportunity to raise his argument about Amendment 439 during his direct appeal when the case was pending in the Sixth Circuit but he did not do so.
II. Analysis
With this background in mind, we turn to the task of analyzing McKibben's instant motion for relief under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that in the case of a criminal defendant who has been sentenced to a term of imprisonment based on a sentencing range that is subsequently lowered by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(o), the sentencing court may reduce the term of imprisonment, after considering the factors set forth in 28 U.S.C. § 3553(a), if such a reduction is consistent with the policy statements issued by the Sentencing Commission.
The plain language of § 3582(c)(2) provides jurisdiction for this Court to reopen, reconsider, and modify a defendant's sentence of imprisonment only when the sentencing range applicable to the defendant has been lowered by the Sentencing Commission and the amendment is made retroactive by the Sentencing Commission. Amendments that are retroactive for purposes of applying 28 U.S.C. § 3582(c)(2) are listed in U.S.S.G. § 1B1.10(c). Amendment 439 is not listed in U.S.S.G. § 1B1.10(c) and has not been made retroactive by the Sentencing Commission. Therefore, McKibben is not entitled to any relief under 28 U.S.C. § 3582(c)(2) based on Amendment 439.
The correct analysis for the situation presented by McKibben is discussed in Rivera v. Warden, FCI, Elkton, 2001 WL 1518801, **3-4 (6th Cir. Nov. 20, 2001). In Rivera, the Sixth Circuit explains that when an amendment to the Sentencing Guidelines clarifies a vague guideline and results in a lower guideline range, a federal prisoner can move the sentencing court under 28 U.S.C. § 3582(c)(2) for a reduction in sentence but only if the clarifying amendment is made retroactive by the Sentencing Commission by being listed in U.S.S.G. § 1B1.10(c). If a clarifying amendment is not listed in U.S.S.G. § 1B1.10(c) and it is not made retroactive by the Sentencing Commission, the federal prisoner cannot utilize 28 U.S.C. § 3582(c)(2) to obtain a modification of sentence but may instead seek post-conviction relief under 28 U.S.C. § 2255. Rivera, 2001 WL 1518801, at **4; Jones v. United States, 161 F.3d 397 (6th Cir. 1998), opinion amended and superseded in part by 178 F.3d 790 (6th Cir.), cert. denied, 528 U.S. 933 (1999); United States v. Marmolejos, 140 F.3d 488 (3rd Cir. 1998); Isabel v. United States, 980 F.2d 60 (1st Cir. 1992).
When this Court follows and applies Rivera to the present case, McKibben's motion brought under 28 U.S.C. § 3582(c) must be denied. Moreover, the Court cannot liberally construe and treat the pro se motion as one brought under 28 U.S.C. § 2255 because McKibben has not complied with 28 U.S.C. § 2244. Before McKibben can file a second, successive § 2255 motion in federal district court, he is required by 28 U.S.C. § 2255 and 2244(b)(3)(A) to first obtain permission from the Court of Appeals for the Sixth Circuit which he has not done.
In sum, McKibben attempts to circumvent 28 U.S.C. § 2255 and 2244(b)(3)(A) by presenting his motion under 18 U.S.C. § 3582(c)(2). This he cannot do for the simple reason that the Sentencing Commission has not made Amendment 439 retroactive under U.S.S.G. § 1B1.10(c). Rivera, 2001 WL 1518801, at **3-4. Accordingly, McKibben's motion under 18 U.S.C. § 3582(c)(2) will be DENIED. A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion by defendant Darien McKibben pursuant to 18 U.S.C. § 3582(c)(2) to modify his sentence is DENIED.
SO ORDERED.