Opinion
CRIMINAL NO. 08-30016-02-GPM.
May 27, 2009
MEMORANDUM AND ORDER
On February 23, 2009, Defendant Jeanette A. Riley was sentenced to a total term of imprisonment of 18 months, followed by 3 years of supervised release. In arriving at this sentence, the Court granted the Government's motion for downward departure under U.S.S.G. § 5K1.1 and reduced her sentence from 60 months to 18 months. On April 15, 2009, Defendant filed a pro se motion for a reduction of sentence. She asks the Court to reduce her sentence from 18 months to 1 year and 1 day, and also for a split sentence with four-and-a-half months of incarceration and the other seven-and-a-half months of home confinement.
"A post-judgment motion needs a source of authority for the judge to act," "for once a criminal case ends in a sentence the judge's power lapses." United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005). Federal Rule of Criminal Procedure 35 governs correcting or reducing a sentence. The Court may correct a sentence that resulted from arithmetical, technical, or other clear error within 7 days after sentencing. FED. R. CRIM. P. 35(a). Not only is Defendant's motion untimely under this provision, but she has failed to allege any such error. Rule 35(b) provides, in pertinent part, that "[u]pon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person." FED. R. CRIM. P. 35(b)(1). It is well-established that only the Government may file a motion pursuant to Rule 35(b). See, e.g., United States v. McDowell, 117 F.3d 974, 979 (7th Cir. 1997). At this time, the Government has not filed a Rule 35(b) motion for a further reduction of Defendant's sentence. As stated above, the Government filed a motion for reduction at sentencing based on Defendant's substantial assistance. See U.S.S.G. § 5K1.1. Moreover, Defendant's current request is not based on the assistance that she rendered; rather, she seeks the reduction to enable her to work, complete continuing education, care for her youngest child, and see her ailing mother. Defendant is not entitled to a reduction under Rule 35.
Defendant asserts nothing that would allow the Court to construe her motion as a collateral attack on her sentence under 28 U.S.C. § 2255. Cf. United States v. Richardson, 558 F.3d 680, 681 (7th Cir. 2009) (construing the defendant's motion to compel the government to file a Rule 35(b) motion as a collateral attack on his sentence under § 2255). In fact, Defendant states in her motion for reduction: "I realize this is a lot to ask and I have no right to do so, but I cannot let it go unasked as I feel I would be hurting my family even more if there was more I could do and didn't try everything I could" (Doc. 106, p. 2). In that regard, the Court declines Defendant's request to write a letter of recommendation to the Office of Banks Real Estate Licensing Board to help her keep her license as a certified appraiser.
For the foregoing reasons, Defendant's pro se motion for reduction of sentence (Doc. 106) is DENIED. IT IS SO ORDERED.