Opinion
Criminal Action No. 3:94CR136 (stamp).
November 18, 2005
ORDER DENYING DEFENDANT'S MOTION TO CORRECT SENTENCE UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 35
On October 17, 2005, this Court received a letter from the defendant requesting a reduction in his sentence. This Court construes defendant's letter as a motion under Federal Rule of Criminal Procedure 35. The defendant's letter motion is attached to and incorporated as a part of this order.
The defendant was sentenced to a term of 210 months after being found guilty by a jury for conspiracy to possess with intent to distribute and to distribution of cocaine base, and in aiding and abetting the distribution of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. In his letter motion, the defendant argues that he was a petty dealer of cocaine base, and that he does not mind serving time for the crimes he committed. Nevertheless, the defendant reminds this Court that he has already served over 12 years for his crime and will serve an additional six years. The defendant argues that the recent decision in United States v. Booker, 125 S.Ct. 738 (2005) allows this Court to reconsider the appropriateness of the defendant's sentence at this time, and the defendant requests a reduction accordingly.
As a preliminary matter, Rule 35(a) of the Federal Rules of Criminal Procedure provides that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." The Advisory Committee Notes on the 1991 Amendments to Rule 35 provide:
The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court to change its mind about the appropriateness of sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regards to the application of the sentencing guidelines.
Finally, Rule 35(b) requires a motion by the government which has not occurred here.
In addition, the Fourth Circuit has made it clear that neitherBooker nor Blakely can be applied retroactively. United States v. Morris, ___ F.3d ___, 2005 WL 2950732 *6 (2005) (Booker not retroactive because not a "watershed" rule).
Accordingly, this Court has no power to reduce the defendant's sentence under Rule 35 or under Booker, and the defendant's letter motion is hereby DENIED.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the defendant and to counsel of record herein.