U.S. v. Brown

Full title: UNITED STATES OF AMERICA Plaintiff, v. LAMONT ANDRE BROWN, Defendant

Court: United States District Court, D. Alaska

Date published: May 24, 2005

A00-132 CR (JWS), [Re: Motion at docket 88 as amended by docket 100] (D. Alaska May. 24, 2005)

Opinion

A00-132 CR (JWS), [Re: Motion at docket 88 as amended by docket 100].

May 24, 2005

ORDER FROM CHAMBERS

JOHN SEDWICK, District Judge

I. MOTIONS PRESENTED

At docket 88, defendant Lamont Andre Brown filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Brown was appointed counsel who filed an amendment to the motion at docket 100. The matter was fully briefed, and the magistrate judge filed report and recommendation at docket 106 recommending that the motion as amended be denied. Timely objections were filed by defendant.

II. STANDARD OF REVIEW

The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."¹ When reviewing a magistrate judge's report and recommendation in a case such as this one, the district court conducts de novo review of all conclusions of law,² and any findings of fact to which objections have been made.³ Uncontested findings of fact are reviewed for clear error.⁴

1 28 U.S.C. § 636(b)(1).

2 Barilla v. Ervin, 886 F.2d 1514, 1518 (9^th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9^th Cir. 1996).

3 28 U.S.C. § 636(b)(1).

4 Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

III. DISCUSSION

Having reviewed the file and applied the standard of review articulated above, this court concludes that the magistrate judge has correctly found the facts and applied the law. This court writes further to emphasize certain points. First, Brown's request for relief depends generally on the proposition that United States v. Booker ⁵ should be applied retroactively to cases on collateral review. The magistrate judge has done an excellent job of canvassing the relevant law and explaining why Booker does not apply retroactively. Second, in his objections, Brown focuses on the fact that the trial court considered acquitted conduct in fashioning his sentence. In United States v. Watts, ⁶ the Supreme Court explained that consideration of such conduct is appropriate. Whether Watts is consistent with later Supreme Court decisions or not, it remains law which this court is bound to follow. The Supreme Court, not this court, is the court with the power to overrule Watts. Third, the alternative request to amend the petition to set forth a claim of ineffective assistance of counsel advanced in the objections lacks merit. Such a claim in this case would be frivolous under the standards governing ineffective assistance claims.⁷

IV. CONCLUSION

For the reasons set out above, the motion at docket 88, as amended at docket 100, is DENIED.