Opinion
No. 98 CR 54.
July 23, 2003.
MEMORANDUM ORDER
Darwin Montana ("Montana") has just submitted what he labels as his "Pro Se Petition For Reduction of Sentence Pursuant to Title 18 USCS 3582(c)(2)" ("Petition") There are several problems with that submission, and each of them independently calls for the denial of Montana's Petition.
To begin with, this Court is without jurisdiction to entertain a motion to reduce Montana's 1999 sentence, because Fed.R.Civ.P. 35 does not allow for such relief at this late date. And if Montana's effort to obtain relief were somehow to be recast as a motion under 28 U.S.C. § 2255 ("Section 2255"), it would have to be rejected for two separate reasons:
1. No constitutional violation has been asserted by Montana, nor does he claim that this Court was without jurisdiction to impose the sentence that it did or that the sentence was in excess of the maximum authorized by law (as contrasted with having been longer than the sentence that this Court was required to impose).
2. But even if that first problem were overcome, the fact remains that Montana has already instituted and lost a Section 2255 motion — one that was not only rejected by this Court back in August 2001 but was then also rejected at the appellate level. That being so, a current Section 2255 motion would be an impermissible "second or successive motion" that could not be brought in the first instance in this District Court.
Those things alone require denial of Montana's current Petition. But he should also understand that he is wrong in substantive terms — he asks for "retroactive effect to amendment 506 of the United States Sentencing Guidelines," ignoring the fact that the amendment to which he refers took effect back in 1994 and was therefore fully considered in his sentencing (based as it was on the November 1, 1997 Guidelines). Moreover, Montana misreads the effect of that amendment, which does not speak at all to the correct manner in which his presentence report took account of his status as a career offender, in addition to which the statute required this Court to impose a consecutive 60-month sentence on the offense under 18 U.S.C. § 924(c).
What has just been said is admittedly gratuitous, given the lack of jurisdiction set out earlier. It is included simply to dispel Montana's obvious misunderstanding in thinking that the Guideline amendment to which he refers would entitle him to any relief. As stated earlier, the Petition is denied outright.