Opinion
Cr. No. 95-0328.
June 30, 2005
MEMORANDUM OPINION
Pending before the Court is Michael E. Cooper's Motion to Modify 2D1.1 Weapon Enhancement Pursuant to 18 U.S.C. § 3582(c)(2) ("Motion") [# 28]. Upon careful consideration of the Motion and the entire record herein, the Court will deny the Motion.
I. Procedural History
On February 5, 1996, Michael E. Cooper pleaded guilty before Judge Charles R. Richey to one count of unlawful possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On April 16, 1996, Mr. Cooper was sentenced to 151 months incarceration, followed by six months of supervised release. The judgment and commitment was issued on April 17, 1996. Mr. Cooper took no direct appeal.
On April 28, 1997, Mr. Cooper filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [# 19], in which Mr. Cooper attempted to withdraw his guilty plea. By Order dated October 20, 1997, Chief Judge Penn denied that motion. The instant motion was filed on June 23, 2005. Mr. Cooper invokes § 3582(c)(2) rather than § 2255 in order to avoid the bar on successive petitions under § 2255.
II. Discussion
Mr. Cooper asks the Court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which provides an exception to the general rule that a court may not modify a sentence once imposed. The exception applies where a defendant was sentenced to a term of imprisonment based on a guidelines range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). In such a case, the sentence may be reduced only after considering the sentencing factors set out in 18 U.S.C. § 3553(a), and only if the reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The sentencing court's power to reduce a sentence under § 3582(c)(2) is discretionary. See United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998).
Pursuant to 28 U.S.C. § 994(o), the Sentencing Commission periodically reviews and revises the Sentencing Guidelines in consideration of comments and data coming to its attention.
The policy statement laid out in U.S.S.G. § 1B1.10 provides that a reduction in sentence is only authorized if the guideline range applicable to the defendant has subsequently been lowered as a result of certain listed amendments to the guidelines. In the instant motion, Mr. Cooper fails to identify an amendment to the guidelines that lowered the guideline range applicable to him. Thus Mr. Cooper is ineligible for modification of his sentence under § 3582(c)(2).
Mr. Cooper argues that the Supreme Court's ruling in United States v. Booker, 125 S. Ct. 738 (2005), gives judges the discretion to impose a sentence lower than the range recommended by the guidelines, and thus is effectively an amendment to the sentencing guidelines that triggers § 3582(c)(2). Contrary to Mr. Cooper's assertions, Booker is inapplicable here. By its plain language, § 3582(c)(2) is not implicated by a decision of the Supreme Court that is unrelated to an actual amendment of the guidelines. The provision only authorizes modification of a sentence as a result of a retroactive amendment to the sentencing guidelines and is not a means to attack the constitutionality of a sentence.
Even if Booker could be characterized as an amendment to the guidelines within the meaning of § 3582, that amendment would not result in a reduction in the guideline range applicable to Defendant as required by the statute before a sentence may be modified. Booker does not change the guideline range applicable to a defendant based on his or her offense, but rather holds that federal judges are no longer bound by that range. 125 S. Ct. at 757. After Booker, a sentencing court must consider the guidelines ranges, but may "tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp. 2004)." Id. Booker provides no relief to Defendant under § 3582(c)(2).
III. Conclusion
For the foregoing reasons, the motion for modification of sentence [# 28] is denied. An appropriate order will accompany this Memorandum Opinion.