Free Ex Parte Document - District Court of Colorado - Colorado

Case 1:03-cr-00215-MSK

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Criminal Action No. 03-cr-00215-MSK UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL JEROME WEBB, Defendant.

ORDER DENYING MOTION FOR SENTENCE REDUCTION The Defendant, Michael Jerome Webb, has filed a document entitled " Ex-Parte Motion for Reduction of Sentience Persuant to 5G1.3(b)(1)(2) and Tittle 18 U.S.C. § 3584"(sic) (#54). Having considered the same, the Court FINDS and CONCLUDES that: The Defendant filed the instant motion pro se. Therefore, the Court must construe the motion liberally, but should not act as the Defendant' advocate. See Haines v. Kerner, 404 U.S. s 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Defendant pled guilty in this Court to possession of a firearm by a prohibited person. On January 20, 2004, he was sentenced to 60 months in prison. Such sentence was to run concurrently with a sentence imposed in El Paso County District Court Case 00CR2631. Judgment entered on January 26, 2004. The Defendant did not file a direct appeal following the judgment of conviction. On January 4, 2005, the Defendant filed a motion (#45) under Fed. R. Crim. P. 36 to correct the written sentence to conform with the judgment. The Defendant complained that the Federal Bureau of Prisons had incorrectly calculated his release date. He sought credit for 446

Case 1:03-cr-00215-MSK

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days which he had spent in prison between the date of his arrest and his federal sentencing. The Court denied the motion, stating that the computation of his federal sentence had taken into account that he was receiving credit against his state sentence for the time he spent in official detention. On May 12, 2005, the Defendant filed a letter (#52) challenging the computation of his sentence, which this Court construed as an application for habeas corpus relief under 28 U.S.C. § 2241. Such application was subsequently denied in Civil Action No. 05-cv-01040-ZLW, after the Defendant failed to cure deficiencies in his application. The Defendant now moves for a reduction in his sentence from 60 months to 51 months. " Based on equitable grounds,"he contends that, because the Bureau of Prisons will not credit him for time served prior to sentencing, this Court may reduce his sentence. He no longer challenges the manner in which his sentence was calculated, and instead asks this Court to reduce the sentence that it previously imposed. He contends that, because the Government previously recommended a 51-month sentence, a reduction in his sentence will allow him to receive a " full concurrent sentence"as the Court ordered. " district court does not have inherent authority to modify a previously imposed A sentence; it may do so only pursuant to statutory authorization." United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). Therefore, because the Defendant is pro se, the Court considers the various statutory provisions which might authorize the relief he seeks. The Court begins with the authority relied upon by the Defendant, U.S.S.G. 5G1.3(b)(1), (2), and 18 U.S.C. § 3584. Neither authorizes a reduction in sentence after its imposition. Rather, both pertain to whether a sentence should be consecutive or concurrent. When it imposed the Defendant' sentence in this case, the Court addressed such issue. s

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Because the authority cited by the Defendant does not authorize a reduction in his sentence, the Court considers other authorities which might apply. To the extent that the Defendant intended to premise his motion upon 18 U.S.C. § 3582, this statute has no application. Section 3582(c) relates to the modification of an imposed term of imprisonment and provides that a" court may not modify a term of imprisonment once it has been imposed except"in three limited circumstances. See also United States v. Smartt, 129 F.3d 539, 540-41 (10th Cir. 1997). First, a court may reduce the term of imprisonment on motion of the Director of the Bureau of Prisons if special circumstances exist. See 18 U.S.C. § 3582(c)(1)(A)(i), (ii). There is no such motion in this case. Second, a " court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). The Court is aware of no applicable statute. Rule 35 allows for correction of " arithmetical, technical, or other clear error"in a sentence within 7 days after sentencing, or for reductions in a sentence for substantial assistance rendered to the Government. Thus, Rule 35 also does not apply. Finally, a court may reduce the term of imprisonment " the in 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." 18 U.S.C. § 3582(c)(2). This, also, has not occurred. It does not appear that the Defendant intends to seek habeas corpus relief. Title 28 U.S.C. § 2241, which provides for a review of the execution of a federal sentence, does not provide this Court with authority to reduce a sentence. The Defendant previously challenged the calculation of his sentence in a § 2241 application, and makes no similar challenge here. In contrast, 28 U.S.C. § 2255 is available to correct sentencing defects that raise constitutional, jurisdictional, or other fundamental issues. See United States v. Addonizio, 442 U.S. 178, 185 (1979). However, the Defendant does not allege that his " sentence was imposed in violation of the Constitution or

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laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Nor has he filed a verified application for habeas corpus relief. Rather, his request appears to be solely for an equitable sentence reduction. Thus, the Court does not treat his request as one for habeas relief. The Defendant has cited to no statute which authorizes the sentence reduction he seeks, and the Court is aware of none. Accordingly, it is ORDERED that the " Ex-Parte Motion for Reduction of Sentience Persuant to 5G1.3(b)(1)(2) and Tittle 18 U.S.C. § 3584"(#54) is DENIED. Dated this 10th day of May, 2007 BY THE COURT:

Marcia S. Krieger United States District Judge

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