U.S. v. Chiau-Min Chang

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CHIAU-MIN CHANG, Defendant

Court: United States District Court, D. Kansas

Date published: Apr 19, 2002

No. 01-20119-01-CM (D. Kan. Apr. 19, 2002)

Opinion

Criminal Action No. 01-20119-01-CM

April 19, 2002

MEMORANDUM AND ORDER

CARLOS MURGUIA, United States District Court Judge.

Pending before the court is defendant Chiau-Min-Chang's Motion for Reconsideration (Doc. 26). Defendant asks the court to reconsider the sentence it imposed on February 25, 2002. Defendant asserts that the Sixth Circuit's decision in United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002), shows that this court's application of the cross-reference at U.S.S.G. § 2G2.4(c)(2) in calculating defendant's sentence was in error. Accordingly, defendant argues that her sentence should be reduced from the 33 months imposed to a sentence of between 8 to 14 months. As set forth below, defendant's motion is denied.

Procedural History

The Federal Grand Jury for the District of Kansas returned a one-count Indictment against defendant on September 19, 2001. The Indictment charged defendant with possessing child pornography, in violation of Title 18, United States Code, Section 2252(a)(4). On November 13, 2001, the defendant appeared before the court and entered a guilty plea to the one-count charged in the Indictment.

Prior to the court's imposition of sentence, defendant objected to the recommendation in the Presentence Investigation Report that the court apply the cross-reference at U.S.S.G. § 2G2.2(c). At the sentencing hearing, the court heard argument on defendant's objection to application of the cross-reference. Following argument, the court denied defendant's objection to the Presentence Investigation Report, and found the cross-reference at U.S.S.G. § 2G2.2(c) applied in this case. Considering all the sentencing factors involved in the case, the court sentenced defendant to a term of imprisonment of 33 months.

Discussion

The court does not have authority to modify defendant's sentence. A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996); 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 certain 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. Defendant has not cited any statute which authorizes the court to modify her sentence. 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 id.; Fed.R.Crim.P. 35 (authorizes resentencing (a) to correct illegal sentence on remand from a court of appeals, (b) to reflect defendant's substantial assistance on motion of the government, and (c) to correct arithmetical, technical, or other clear error within seven days of sentencing); Fed.R.Crim.P. 36 (authorizes court to correct clerical-type errors). Finally, the court does not have inherent authority to resentence defendant. See Blackwell, 81 F.3d at 949. For these reasons, the court does not have jurisdiction to substantively modify defendant's sentence at this time.¹

1 A district court "is empowered, of course, to modify a defendant's sentence pursuant to mandate from [the appellate] court." Blackwell, 81 F.3d at 948 n. 2 (citing 28 U.S.C. § 2106 (federal appellate court may reverse and remand for further proceedings)).

Order

IT IS THEREFORE ORDERED that defendant's Motion for Reconsideration (Doc. 26) is denied, as this court has no jurisdiction to hear it.

The Clerk of the Court is directed to forward copies of this order to defendant, defendant's counsel, the office of the United States Attorney, the United States Probation Office and the Regional Director of the Bureau of Prisons. IT IS SO ORDERED. Dated this day of April 2002, at Kansas City, Kansas.

CRIMINAL . . . MOTION TO ALTER/RECONSIDER SENTENCE:

The court has no jurisdiction to hear the defendant's Motion for Reconsideration. "Federal courts are courts of limited jurisdiction." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994). As such, a "district court does not have inherent power to resentence [a] defendant at any time." United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989); accord United States v. Corey, 999 F.2d 493, 496 (10th Cir. 1993). Instead, a "district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so." United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996), overruled on other grounds finish this . . .

"To date, Congress has granted the district courts such jurisdiction in only three places: 18 U.S.C. § 3582(c) and Federal Rules of Criminal Procedure 35 and 36. United States v. Keifer, 12 Fed. Appx. 702, 704 (10th Cir. 2001).

As set out by the Tenth Circuit:

Section 3582(c) of Title 18 of the United States Code provides three avenues through which the court may "modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). A court may modify a sentence: (1) in certain circumstances "upon motion of the Director of the Bureau of Prisons"; (2) "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure"; or (3) "upon motion of the defendant or the Director of the Bureau of Prisons," or on the court's own motion in cases where the applicable sentencing range "has subsequently been lowered by the Sentencing Commission." Id. at §§ 3582(c)(1)(A), (c)(1)(B), (c)(2).

Id. at 947-48. In this case, avenues one and three are inapplicable. Therefore, only avenue two may provide the route through which this court may find jurisdiction to hear defendant's pending motion.

Rule 35 of the Federal Rules of Criminal Procedure empowers a court to

correct or reduce a Defendant's sentence in three specified instances. Subsection (a) authorizes a district court to correct an illegal sentence on remand from a court of appeals. Fed.R.Crim.P. 35(a). Subsection (b) grants a court authority to "reduce a sentence to reflect a defendant's subsequent, substantial assistance" " on motion of the Government made within one year after the imposition of the sentence." Fed.R.Crim.P. 35(b) (emphasis added). Finally, subsection (c) provides that a court "acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(c).

Id. None of these subsections in Rule 35 apply to the instance case. Subsection (a) addresses sentences on remand, a situation not present here. Subsection (b) addresses situations where a defendant is able to provide subsequent, substantial assistance and allows for departure only upon motion of the government. Finally, subsection (c) addresses situations where a clerical error has been made in the sentence. Clearly, defendant's assertion that the court improperly applied the cross-reference at U.S.S.G. § 2G2.2(c) is not clerical in nature, but rather addresses the substance of the sentence imposed. Rule 35 provides no relief for defendant.

Finally, the court finds it possessed no "inherent authority" to modify the sentence imposed, as requested by defendant. As noted, this "district court does not have inherent power to resentence [a] defendant at any time." Lewis, 862 F.2d at 750. Absent some statutory authority, authorizing the modification in sentence, this court is without jurisdiction to hear defendant's motion.