United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Kimberly
Phillips' Motion for Resentencing in Light of New
Evidence and Motion to Dismiss Count 8 (Doc. 51). Phillips
challenges her conviction and sentence on Count 8 of the
Indictment-carrying a firearm during and in relation to a
drug trafficking crime. For reasons stated below, the Court
denies Phillips' motion.
Factual and Procedural Background
27, 2018, Phillips pleaded guilty to Counts 1 and 8 of the
Indictment. Count 1 charges a violation of 21 U.S.C. §
841(a)(1)-possession with the intent to distribute a
controlled substance. Count 8 charges a violation of 18
U.S.C. § 924(c)(1)(A)-carrying a firearm during and in
relation to a drug trafficking crime. On November 28, 2018,
the Court sentenced Phillips to 84 months imprisonment, four
years of supervised release, and a $250 special assessment.
Phillips did not file a direct appeal to the Tenth Circuit
Court of Appeals.
August 19, 2019, Phillips filed this motion for resentencing
and dismissal of Count 8 of the Indictment seeking:
with respect to this motion I am requesting double jeopardy
clause to apply, as I am seeking the 924 c on count 8 to be
withdrawn and the respective consequences subtracted,
including time in prison, supervised time, and monetary
fines. In light of the new evidence, I strenuously plead with
the court the remaining balance of my sentence to be spent
productively participating in the Rdap program in a minimum
security camp, close to home. To graduate into reintegration
and home confinement. In addition to dismissal of count 8.
contends that her conviction and accompanying sentence as to
Count 8 are unlawful under the Supreme Court's recent
decision in United States v. Davis,  which holds that
the residual clause of 18 U.S.C. § 924(c)(3)(B) is
The Court will not recharacterize Phillips'
has characterized her motion as a “Motion for
Resentencing in Light of New Evidence.” The Court,
however, does not have jurisdiction to resentence Phillips. A
federal district court may modify a defendant's sentence
only where Congress has expressly authorized it to do
In 18 U.S.C. § 3582(c)(1), Congress 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 at least 30 years in prison; (2) when
“expressly permitted by statute or Rule
35;” and (3) when the defendant has been
sentenced “based on a sentencing range that has
subsequently been lowered by the Sentencing
Commission.” None of these exceptions apply in this
case. Furthermore, the Court does not have
inherent authority to resentence a defendant.
Court has discretion to construe Phillips' motion as a
Petition to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255. A § 2255 petition is “the
exclusive remedy for a federal prisoner attacking the
legality of his detention.” Here, Phillips asks for
Count 8 to be withdrawn because the Supreme Court held that a
portion of the statute she was convicted under is
unconstitutionally vague. Thus, Phillips' motion attacks
the legality of her conviction and sentence and could be
construed as a § 2255 petition.
Court, however, declines to do so. A prisoner only has one
opportunity to have a § 2255 petition considered on the
merits, and successive petitions are generally
barred. As explained below, Phillips' claim
for relief is not legally cognizable, and thus, if the Court
were to recharacterize her petition in this instance, it
would be a bar to any further § 2255 petition she may
file. Therefore, the Court will not treat Phillips'
motion as a petition to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255.
Davis does not affect the validity of Phillips'
conviction or sentence.
the Court had jurisdiction to resentence Phillips, her motion
must still be denied. Phillips was convicted under 18 U.S.C.
§ 924(c)(1)(A)-a statute that “threatens long
prison sentences for anyone who uses a firearm in connection