Opinion
05-20073-JWL
11-28-2023
United States of America, Plaintiff, v. Norman Shaw, Jr., Defendant.
MEMORANDUM & ORDER
HON. JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
On November 8, 2022, the court revoked defendant's supervised release after finding defendant in violation of the terms of his supervised release. The court sentenced defendant to twenty-one months imprisonment and one year of supervised release. The Tenth Circuit affirmed that sentence on appeal. United States v. Shaw, 2023 WL 3335596 (10th Cir. May 10, 2023). Defendant has now filed a motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821. The motion is dismissed.
“A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization.” See United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Section 3582 allows for a possible sentence reduction for 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.” See 18 U.S.C. § 3582(c)(2). In his motion, defendant argues that his original term of imprisonment would be lower based on Amendment 821. However, once a defendant serves his original term of imprisonment, the court no longer has authority to modify that portion of his sentence. United States v. Dahda, 2022 WL 4079021, at *4 (D. Kan. Sept. 6, 2022) (citing United States v. Wilson, 799 Fed.Appx. 792, 794 (11th Cir. 2020) (“Our authority to grant § 3582(c)(2) relief to [defendant] vanished once he served his entire term of imprisonment, regardless of whether he is on supervised release as a result of his conviction.”); United States v. Martin, 974 F.3d 124, 144 (2d Cir. 2020) (“If Congress intended to permit the retroactive modification of a sentence that has already been served, it could have done so.”)). Because defendant is no longer in custody on a sentence that was arguably based on a sentencing range the Sentencing Commission lowered subsequent to defendant's sentencing, the court lacks jurisdiction to grant defendant relief under 18 U.S.C. § 3582(c)(2). See United States v. Williams, 367 Fed.Appx. 967, 968 (10th Cir. 2010) (affirming district court's denial of § 3582(c)(2) motion filed by defendant serving revocation sentence; current term of incarceration was based on noncompliance with the terms of his supervised release, not on the drug quantity table set forth in U.S.S.G. § 2D1.1(c)).
In any event, Amendment 821 would not alter defendant's original sentence or his revocation sentence. Defendant's criminal history score of VI was based entirely on defendant's career offender status under U.S.S.G. § 4B1.1. In fact, as expressly noted in defendant's PSR, his criminal history points and calculation were included in the PSR “for reference only.”
In sum, because the defendant has not shown a basis for the court's jurisdiction, the court must dismiss his motion.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) (doc. 239) is dismissed for lack of jurisdiction.
IS SO ORDERED.