Opinion
Case No. 8:03-CR-413-T-27MSS.
October 24, 2007
ORDER
BEFORE THE COURT is correspondence from Defendant which is construed as a Motion for Reduction or Modification of Sentence (Dkt. 186). Defendant's construed motion must be DENIED, as this Court lacks jurisdiction to reduce or modify Defendant's sentence.
A criminal sentence may be corrected under Rule 35 or 36 or modified under 18 U.S.C. § 3582(c). Under Rule 35, the court may correct an arithmetical, technical, or other clear error within seven days after sentencing or, on the government's motion, reduce a sentence based on a defendant's substantial assistance. The seven day limitation under Rule 35(a) is jurisdictional. United States v. Diaz-Clark, 292 F.3d 1310, 1317 (11th Cir. 2002). The Government has not filed a substantial assistance motion. Accordingly, Rules 35 and 36 are inapplicable to the construed motion.
Section 3582(b) does not provide jurisdiction to the district court to modify a sentence. United States v. Stossel, 348 F.3d 1320, 1321 (11th Cir. 2003).
Under 18 U.S.C. § 3582(c), a sentence may be modified: (1) on motion of the Director of the Bureau of Prisons; (2) under Rule 35 or as otherwise expressly permitted by statute; or (3) if the sentencing range has subsequently been lowered by the Sentencing Commission. United States v. McGranahan, 168 Fed.Appx. 934, 937 (11th Cir. 2006). None of those three circumstances presents itself here. Defendant does not argue that a retroactive change in the applicable sentencing guideline vests jurisdiction in the court to adjust her sentence pursuant to § 3582(c)(2). Accordingly, this Court lacks jurisdiction to reduce, modify, or adjust Defendant's sentence. See United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000).
To the extent Defendant relies on United States v. Booker, 543 U.S. 220 (2005) in support of her motion, Booker does not apply retroactively to cases on collateral review. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (citing Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) and In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005)). Moreover, Booker is inapplicable to § 3582(c)(2) motions and does not otherwise provide a jurisdictional basis to reduce Defendant's sentence. Moreno, 421 F.3d at 1220-21. Accordingly, it is
ORDERED AND ADJUDGED that Defendant's construed Motion for Reduction or Modification of Sentence (Dkt. 186) is DENIED.