Opinion
No. 98 CR 509-8
March 7, 2003
MEMORANDUM OPINION AND ORDER
In 1998, Charles Poteete ("Poteete") was convicted of conspiring to distribute narcotics. He was sentenced to 210 months in prison and five years of supervised release, Poteete brings this pro se motion pursuant to 18 U.S.C. § 3582 (c) to modify his sentence. For the reasons set forth below, Poteete's motion is denied,
Discussion
Pursuant to an amendment that became effective on November 1, 2002, the United States Sentencing Commission amended section 2D1.1(a)(3) of the Guidelines Manual (the "Guidelines") to reduce the base offense level for drug offenses in certain cases. Poteete contends that the revised version of section 2D1.1(a)(3) applies to him retroactively and thus entitles him to a reduction of his prison sentence, Poteete is mistaken,
The general rule is that a court may not modify a sentence imposing imprisonment. Vaszuez v. United States, 2001 WL 668933, at *2 (S.D.N.Y. June 13, 2001). As Poteete points out, however, 18 U.S.C. § 3582 makes a specific exception to this rule. A court may reduce the sentence "of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Cornmission" 18 U.S.C. § 3582 (c)(2) The applicable policy statement in this case is Found in section 1B1.10 of the Guidelines themselves. Section 1B1.10 specifically lists the amendments to be applied retroactively and states: "[i]f none of the amendments listed. . . is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 35820 (2) is not consistent with this policy statement and (has is not authorized." United States Sentencing Commission, Guidelines Manual, § 1B1.10 (a) (Nov. 2002).
Poteete seeks a sentence reduction under revised Guidelines section 2D1.1 (a)(3), which was effected by amendment 640 Amendment 640 is not listed in section 1B1.10 of the Guidelines; therefore, it does not apply retroactively. See United States v. Munoz, 967 F. Supp. 1062 (N.D. Ill. 1997).
Conclusion
For the reasons stated above, Poteete's motion to modify his sentence is denied.