Opinion
No. 7:04-CR-32-01-F3.
November 24, 2010
ORDER
This matter is before the court on defendant's letter dated November 17, 2010, asking the court to reconsider its November 8, 2010 Order [DE-72] denying his pro se Motion to Reduce Sentence [DE-71] pursuant to 18 U.S.C. § 3582(c) and § 8 of the Fair Sentencing Act of 2010 ("FSA"). For the following reasons, the defendant's motion [DE-73] is DENIED without prejudice.
As this court already has explained, § 3582(c)(2) allows a court to modify an imposed term of imprisonment when the Sentencing Commission has subsequently lowered the defendant's guideline range "if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The applicable policy statement can be found in U.S.S.G. § 1B1.10(a), which provides:
Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582 is not consistent with this policy statement and thus not authorized.Id. (emphasis added). Therefore, if an amendment is not listed in U.S.S.G. § 1B1.10(c), it may not be applied retroactively on a § 3582(c) motion.
As this court already has observed, the FSA amendments to the advisory sentencing guidelines are not among those listed in U.S.S.G. § 1B1.10(c). Kornegay, therefore, cannot rely on § 3582(c)(2) as a basis to reduce his sentence. Nothing in the case upon which Kornegay relies in his latest motion, United States v. Victores, No. 09-12270, 2010 WL 4455126 (11th Cir. Nov. 8, 2010) (per curiam), suggests anything to the contrary. In Victores, the relevant amendment to the advisory sentencing guidelines-Amendment 706-was made retroactive by the Sentencing Commission and listed in U.S.S.G. § 1B1.10(c) as a retroactive amendment. Id. at *1. See also United States v. Dunphy, 551 F.3d 247, 249 (4th Cir. 2009) (noting the Sentencing Commission "added Amendment 706 to the list in U.S.S.G. § 1B1.10(c) policy statement that designates those guidelines amendments which may be applied retroactively").
Accordingly, Kornegay's latest motion [DE-73] seeking the reduction of his sentence pursuant to § 3582(c) is DENIED without prejudice to renew should the Sentencing Commission later announce that § 8 of the FSA is to be applied retroactively.
SO ORDERED.
This the 24th day of November, 2010.