Opinion
Case No. 3:04-cr-189(1) Court of Appeals Case No. 13-3342
10-31-2013
UNITED STATES OF AMERICA, Plaintiff, v. ANDRE MAHAN, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY OVERRULING DEFENDANT'S "MOTION FOR
REDUCTION OF SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)
AMENDMENT 599" (DOC. #87)
After pleading guilty to two counts of Armed Bank Robbery, 18 U.S.C. § 2113, and one count of Use of a Firearm in a Crime of Violence, and Aiding and Abetting, 18 U.S.C. § 924(c) and 18 U.S.C. §2, Defendant Andre Mahan was sentenced to 1 76 months imprisonment. The robberies at issue occurred in August and September of 2004. Defendant was sentenced on June 15, 2006, and an Amended Judgment was entered on July 12, 2006.
On January 20, 2011, Defendant filed a "Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) Amendment 599." Doc. #87. Section 3582(c)(2) of Title 18 of the United States Code provides as follows:
On March 1, 2012, Defendant filed a Petition for Writ of Mandamus, seeking to compel a ruling on his pending motion. Doc. #88. In response, the Court directed the Government to file a response to the § 3582(c)(2) motion, Doc. #90, and the Sixth Circuit Court of Appeals denied the Petition for Writ of Mandamus. Doc. #91. After seeking and being granted two extensions of time, the Government filed its response on August 6, 2012. Doc. #94. On February 11, 2013, Defendant, having not yet received a ruling on the pending motion, quite properly sent a Letter of Inquiry to the Court. Doc. #95. On March 26, 2013, he filed another Petition for a Writ of Mandamus. Doc. #96. On September 9, 2013, the Sixth Circuit directed the Court to rule on the pending motion within 60 days. Doc. #99. The Court is embarrassed by and regrets the delay in ruling on Defendant's motion.
(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--18 U.S.C. § 3582(c)(2).
. . .
(2) in the 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Defendant relies on Amendment 599 to U.S.S.G. §2K2.4 as the basis for his motion for a reduction of his sentence. Amendment 599 was enacted "to clarify under what circumstances a weapons enhancement may be applied to an underlying offense when the defendant has also received an 18 U.S.C. § 924(c) conviction, which provides separate punishment for the use or possession of a firearm in a violent crime." United States v. Pringle, 350 F.3d 1172, 1176 (11th Cir. 2003). Because the Amendment is listed in U.S.S.G. § 1 B1.10(c), it applies retroactively, making it, in some cases, an appropriate basis for a motion for a reduced sentence under §3582(c)(2). United States v. Williams, 52 F. App'x 729, 731 (6th Cir. 2002).
Under the circumstances presented here, however, Amendment 599 provides no avenue for the Court to grant the relief requested. Section 3582(c)(2) applies only when the Sentencing Commission subsequently lowers the applicable sentencing range, i.e., post-sentencing. Here, because Amendment 599 became effective on November 1, 2000, more than five years before Defendant was sentenced, it cannot form the basis for sentence modification. See United States v. Muller, No. 08-20009, 2011 WL 7299838, at *2 (E.D. Mich. Oct. 31, 2011) ("Without a modification of the guidelines subsequent to the imposition of defendant's sentence, the court has no authority to modify defendant's sentence."); United States v. Hilliard, No. 1:04CR-16-R, 2010 WL 456809, at *2 (W.D. Ky. Feb. 3, 2010) (finding § 3582(c)(2) inapplicable because Amendment 599 was in effect for several years prior to defendant's sentencing).
Having determined that it lacks authority to grant the relief requested, the Court OVERRULES Defendant's "Motion for Reduction of Sentence Pursuant to 18 U.S.C. §3582(c)(2), Amendment 599." Doc. #87.
________________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE