Opinion
3:05-cr-16-KRG-KAP
10-23-2018
UNITED STATES OF AMERICA v. WILLIE G. GULLEY, JR., Defendant
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
Movant Willie Gulley has filed a motion for reduction of sentence pursuant to 18 U.S.C.§ 3582(c)(2), ECF no. 253, referred to me under 28 U.S.C.S 636(b)(3). The motion should be summarily denied without need of a response. Report
As the court is aware, the movant is awaiting trial on new charges at Case No. 3:18-cv-09-KRG-KAP (W.D.Pa.). He is awaiting a revocation hearing on his supervised release term in this matter, and is also awaiting a revocation hearing on his supervised release term in Case No. 3:15-cv-13-KRG-KAP (W.D.Pa.).
Movant is attempting to avoid the revocation of supervised release in this matter on the following reasoning: I was originally sentenced in December 2006 to 151 months imprisonment. If all subsequent Guideline Amendments that would have reduced my sentence of imprisonment in this matter were to apply, my supervised release period in this matter would have begun sooner and would have expired before the alleged violations took place, and I would not be facing revocation proceedings in this matter.
Movant is rather vague about which Guideline Amendments would do what he suggests, and overlooks the history of this matter, in which Amendments 706, 711, and 750 were in fact applied to reduce his sentence to 121 and then 120 months, but the Court held that it could not apply Amendment 750 to go below the mandatory minimum in effect at the time of sentencing. See ECF nos. 202, 203, affirmed by nonprecedential opinion sub nom. United States v. Davis, No. 12-1836, 12-2225, and 12-2556 (3d Cir. January 24, 2014) .
But even if movant cited a specific Guideline Amendment, he could not obtain the relief he seeks in this matter. Section 3582(c)(2) provides:
[I]n the case 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The Court of Appeals, in a pair of nonprecedential but persuasive opinions, United States v. Cuff, 338 Fed.Appx. 161, 164 (3d Cir. 2009), and United States v. Bolt, 377 Fed.Appx. 253, 254 (3d Cir.2010), has rejected any attempt to reduce a supervised release sentence based on the alleged retroactive application of Amendment 706 to a sentence of imprisonment that had already been served because U.S.S.G.§ 1B1.10 and therefore motions under Section 3582(c)(2) apply only to a defendant who is currently serving a term of imprisonment. Precedent in this district, see e.g. Chief Judge Conti's opinion in United States v. Washington, 2015 WL 4094411 (W.D.Pa. July 7, 2015), denying a motion to reduce a sentence imposed on a revocation of supervised release based on Amendment 782, is consistent:
Reductions in the term of imprisonment resulting from the amendment of a guideline range is governed by the policy statement found in U.S.S.G.§ 1B1.10. Pursuant to Application Note 7(A) of §1B1.10:
Only a term of imprisonment imposed as part of the original sentence is authorized to be reduced under this section. This section does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release.
Defendant filed his motion for reduction in sentence only in the 03-72 case, for which he is serving an eighteen month term of imprisonment based upon a violation of the conditions of his supervised release imposed in the 03-72 case. Defendant, therefore, is not entitled to the relief he requests in this case because he is not serving a term of imprisonment that was part of his original sentence. Defendant's motion will, therefore, be denied.
2015 WL 4094411 at *2. See also United States v. Lyons, 2017 WL 1383426 (W.D.Pa. April 18, 2017). Movant's attempt to avoid revocation proceedings altogether should likewise be denied.
Pursuant to 28 U.S.C.§ 636(b) (1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation.
Notice to counsel of record by ECF and by U.S. Mail to:
Willie G. Gulley Jr., 18-00722
Cambria County Prison
425 Manor Drive
Ebensburg, PA 15 931