United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
August 28, 2014, the Court sentenced defendant to life in
prison. On October 30, 2017, the Court denied defendant's
motion to vacate sentence under 28 U.S.C. § 2255. This
matter is before the Court on defendant's pro se
Motion For Sentence Reduction [Under 18 U.S.C. §]
3582 (Doc. #1119) filed January 16, 2019, which the
Court construes in part as a second or successive motion
under 28 U.S.C. § 2255. For reasons stated below, the
Court dismisses defendant's motion in its entirety for
lack of jurisdiction.
federal district court may modify a defendant's sentence
only where Congress has expressly authorized it to do so.
See 18 U.S.C. § 3582(c); United States v.
Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Liberally
construed, defendant's motion asserts that (1) the Court
improperly enhanced his sentence for a murder, (2) he is
entitled to relief under Amendment 782 to the Sentencing
Guidelines, (3) he is entitled to relief under the First Step
Act of 2018, Pub. Law 115-391 (S. 756), 132 Stat. 5194
(enacted Dec. 21, 2018), and (4) the Court should reduce his
sentence for post-offense rehabilitation. Motion For
Sentence Reduction [Under 18 U.S.C. §] 3582 (Doc.
#1119) at 3-9. Defendant's first claim for relief in
substance and effect asserts federal grounds for relief based
on error in his underlying sentence. Because defendant
previously sought relief under Section 2255, the Court
construes his claim as part of a second or successive Section
2255 motion. See United States v. Wetzel-Sanders,
805 F.3d 1266, 1268 (10th Cir. 2015) (motion which attacks
judgment of conviction or sentence when prior motion already
did so constitutes second or successive motion); Spitznas
v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (motions
that assert defect outside context of habeas proceeding
constitute second or successive petitions).
Section 2255 Motion - Claim 1
noted, defendant previously filed a Section 2255 motion.
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996, defendant may not file a second or successive motion
pursuant to Section 2255 unless he first applies to the
appropriate court of appeals for an order authorizing the
district court to consider the motion. See 28 U.S.C.
§§ 2244(b)(3), 2255(h). If defendant files a second
or successive motion without first seeking the required
authorization, the district court may (1) transfer the motion
to the appellate court if it determines that it is in the
interest of justice pursuant to 28 U.S.C. § 1631 or (2)
dismiss the motion for lack of jurisdiction. See In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). The Court
has discretion in deciding whether to transfer or dismiss
without prejudice. Trujillo v. Williams, 465 F.3d
1210, 1222-23 (10th Cir. 2006). In making this decision, the
Court considers whether the claim would be time-barred if
filed anew in the proper forum, whether the claim is likely
to have merit and whether the claim was filed in good faith
or if, on the other hand, it was clear at the time of filing
that the Court lacked jurisdiction. Id. at 1223
it appears that defendant's claim of judicial error at
sentencing does not satisfy the authorization standards under
Section 2255, the Court dismisses the successive Section 2255
motion rather than transferring it to the Tenth Circuit.
See In re Cline, 531 F.3d at 1252 (district court
may refuse to transfer motion which fails on its face to
satisfy authorization standards of Section 2255(h));
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999) (waste of judicial resources to require transfer of
frivolous, time-barred cases). A second or successive motion
under Section 2255 may be filed in the district court if the
court of appeals certifies that the motion is based on (1)
newly discovered evidence that if proven and viewed in light
of the evidence as a whole would establish by clear and
convincing evidence that no reasonable factfinder would have
found defendant guilty of the offense or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
defendant asserts that the Court improperly enhanced his
sentence based on a murder. Defendant has not asserted
“newly discovered evidence” or shown that the
Supreme Court has made retroactive a new rule of
constitutional law that was previously unavailable.
Accordingly, the Court declines to transfer the present
motion to the Court of Appeals.
Relief Under Sentencing Amendment 782 - Claim 2
seeks relief under Amendment 782 to the United States
Sentencing Guidelines, which lowered the base offense levels
for certain quantities in the Drug Quantity Table at U.S.S.G.
§ 2D1.1(c). Defendant is not eligible for relief because
his base offense level was calculated under the murder
cross-reference in Section 2D1.1(d), not under the Drug
Quantity Table in Section 2D1.1(c). See Presentence
Investigation Report (Doc. #777) ¶ 75-76 (under
cross reference in Section 2D1.1(d), base offense level 43
for first degree murder in Section 2A1.1(a) controls).
Relief Under First Step Act Of 2018 - Claim 3
seeks relief under the First Step Act of 2018, which
retroactively applies the revised statutory penalties of the
Fair Sentencing Act of 2010, Pub. Law 111-220; 124 Stat.
2372. See First Step Act § 404(a) (First Step
Act applies to sentences for violation of federal criminal
statute with statutory penalties modified by Fair Sentencing
Act that was committed before August 3, 2010). Effective
August 3, 2010, the Fair Sentencing Act reduced the amount of
cocaine base needed to trigger certain statutory minimum and
maximum sentences. See 21 U.S.C. §
841(b)(1)(A)(iii) (raising from 50 to 280 grams the amount of
cocaine base needed to trigger statutory range of 10 years to
life in prison); 21 U.S.C. § 841(b)(1)(B)(iii) (raising
from 5 to 28 grams the amount of cocaine base needed to
trigger statutory range of 5 to 40 years in prison). Under
the First Step Act of 2018, the Court may impose a reduced
sentence as if the revised statutory penalties of the Fair
Sentencing Act were in effect at the time the covered offense
was committed. First Step Act § 404(b).
the Second Superseding Indictment (Doc. #439)
charged defendant based on the revised penalties of the Fair
Sentencing Act. See Second Superseding Indictment
(Doc. #439) filed November 20, 2013, Count 1 (conspiracy with
intent to distribute more than 280 grams of cocaine base).
Because defendant was charged and sentenced based on the
revised statutory penalties of the Fair Sentencing Act, the
Court lacks jurisdiction to modify his sentence under the
First Step Act. See First Step Act § 404(c) (no
court shall entertain motion under this section if sentence
previously imposed in accordance with amendments in sections
2 and 3 of Fair Sentencing Act of 2010).
Relief Based On Rehabilitation - Claim 4
asks that the Court reduce his sentence based on
post-conviction rehabilitation. As noted above, a federal
district court may modify a defendant's sentence only
where Congress has expressly authorized it to do so.
See 18 U.S.C. § 3582(c). Congress has set forth
three limited circumstances in which a court may modify a
sentence: (1) upon motion of the Director of the Bureau of
Prisons in extraordinary circumstances or where defendant has
reached 70 years of age and has served at least 30 years in
prison; (2) when “expressly permitted by statute or by
Rule 35;” and (3) when defendant has been sentenced
“based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. §
3582(c)(1), (2); see Blackwell, 81 F.3d at 947-48.
None of these exceptions apply here. Moreover, Rules 35 and
36 of the Federal Rules of Criminal Procedure clearly do not
authorize a substantive modification of defendant's
sentence at this time. See Blackwell, 81 F.3d at
947-48; Fed. R. Crim. P. 35 (authorizes resentencing to
reflect defendant's substantial assistance on motion of
government and to correct arithmetical, technical or other