Opinion
Criminal Action No. 3:03CR-64-H.
April 27, 2005
MEMORANDUM AND ORDER
This matter is before the court on the defendant's motion for resentencing in light of Booker v. United States, 125 S.Ct. 738 (2005) (DN 52). The United States filed its opposing memorandum. Because the court lacks jurisdiction over the motion, the motion will be denied.
I.
On March 22, 2004, the defendant pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm and ammunition. On September 7, 2004, this court held a sentencing hearing where counsel for the defendant moved the court for permission to seek a resentence in the event that the United States Supreme Court invalidated the United States Sentencing Guidelines (DN 51, Transcript, pp. 4-5). The court denied the motion, id. at 5, and thereafter sentenced the defendant to 37 months of incarceration followed by three years of supervised release (DN 44). The defendant did not file an appeal.
On January 12, 2005, the United States Supreme Court issued its decision in Booker v. United States where it instructed that in the post- Booker world, "[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Booker, 125 S.Ct. at 767. Because of this pronouncement, the defendant now seeks a resentence where the district court uses the guidelines as an advisory tool only.
II.
The defendant did not set forth the basis of this court's authority to grant the relief he has requested. A federal district court is a court of limited jurisdiction and "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); United States v. Crowder, 947 F.Supp. 1183 (E.D. Tenn. 1996) (same). That authority must come by way of a federal statute or the Federal Rules of Criminal Procedure. Crowder, 947 F.Supp. at 1187 (citing Blackwell, 81 F.3d at 949; United States v. Lewis, 862 F.2d 748, 750 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989)).
Generally, a district court revisits a defendant's sentence in one of four principal ways: (1) in a Rule 35 motion to correct or reduce a sentence; (2) following a remand under 28 U.S.C. § 2106; (3) by way of a motion under 18 U.S.C. § 3582(c); and (4) through a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
This court does not possess authority over this defendant's motion under either subpart of Fed.R. Cr. P. 35 because the seven-day period following sentencing has passed for correcting arithmetical, technical or other clear error and the government has not moved for a reduction in the defendant's sentence based upon his substantial sentence. Nor does this court possess jurisdiction under 28 U.S.C. § 2106 as this case is not before the court on remand from the appellate court. No provision of 18 U.S.C. § 3582 is arguably applicable to this case. And, while this court does possess jurisdiction to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, the defendant did not clearly invoke § 2255 and this court will not recharacterize the motion as one seeking relief under § 2255. See Castro v. United States, 540 U.S. 375, 383 (2003) (holding that a district court is limited in recharacterizing motions as first § 2255 motions and "must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on `second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has") (adopting the rule set forth in In re Shelton, 295 F.3d 620, 621-22 (6th Cir. 2002)).
Because this court has no authority to resentence the defendant and is, therefore, without jurisdiction to grant the relief requested, the defendant's motion is DENIED. The clerk, however, is directed to provide the defendant with a court-approved form for seeking relief under 28 U.S.C. § 2255.