Opinion
05 Cr. 1193 (RWS).
August 12, 2008
MEMORANDUM OPINION AND ORDER
On October 30, 2006, defendant Gary Harvey ("Harvey" or "Defendant") pled guilty to one count of conspiring, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). On June 12, 2007, Harvey was sentenced to a term of imprisonment of 70 months, to be followed by a four-year term of supervised release. By letter motion postmarked March 28, 2008, Harvey moved for a modification of his term of imprisonment. For the reasons set forth below, Harvey's motion is denied.
Discussion
Pursuant to 18 U.S.C. § 3582(c)(2), a court "may not modify a term of imprisonment once it has been imposed," subject to four exceptions: (1) upon motion of the Director of the Bureau of Prisons, a court may reduce a sentence if it determines that extraordinary and compelling reasons warrant such a reduction, 18 U.S.C. § 35B2(c)(1)(A)(i); (2) a court may modify a sentence where the defendant is at least 70 years of age, has served at least 30 years in prison, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, 18 U.S.C. § 3582(c)(1)(A)(ii); (3) a court may modify a sentence to the extent permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C. § 3582(c)(1)(B); or (4) a court may modify a sentence if a sentencing range has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), 18 U.S.C. § 3582(c)(2).
Harvey states that he was diagnosed with prostate cancer subsequent to his sentencing and requests that the Court consider his medical condition as a basis for modifying his sentence. However, a sentence reduction based upon a defendant's medical condition, available pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), is limited to circumstances where the Director of the Bureau of Prisons has moved to reduce the term of a defendant's sentence. Where the Bureau of Prisons has not moved to reduce the term of a defendant's sentence, the Court may not modify a term of imprisonment. See, e.g., United States v. Ozoria, No. 01 Cr. 0140, 2008 WL 1840764, at *1 (W.D.N.Y. Apr. 22, 2008) ("Because the Bureau of Prisons did not file the motion, this Court lacks the authority to modify the defendant's sentence under this subsection regardless of whether his mental illness is an `extraordinary and compelling' reason."); Rivera v. United States, No. 91 Cr. 595 (KTD), 2003 WL 76988, at *1 (S.D.N.Y. Jan. 9, 2003) (holding that a sentence could not be reduced under section 3582(c)(1)(A) absent a motion by the Bureau of Prisons). Because no such motion has been brought by the Bureau of Prisons with regard to Harvey, this Court lacks jurisdiction to modify Harvey's sentence pursuant to section 3582(c)(1)(A).
Without ruling on Harvey's eligibility for such relief, the Court declines to construe his motion as a petition for habeas corpus challenging the conditions of his confinement, pursuant to 28 U.S.C. § 2241. Cf. Simon v. United States, 359 F.3d 139, 145 (2d Cir. 2004) (instructing district courts to refrain from converting motions to habeas petitions sua sponte without notice to and consent from defendant). This Court is without authority to issue such a writ, as a petition for the writ must be brought in the district where the petitioner is confined. See White v. Craig, 218 F. App'x 10, at *1 (2d Cir. 2007) ("[T]he correct forum for a § 2241 petition is the district where the petitioner is confined.") (citing Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974)). The Court notes that Harvey is currently incarcerated outside of the Southern District of New York, at Ashland Federal Prison Camp in Kentucky, therefore, this Court has no jurisdiction over any Section 2241 claims pertaining to his confinement.
Finally, Harvey states that a resentencing is warranted because his sentence was "procedurally unreasonable," based upon his assertion that the Court failed to consider his "withdrawal from the conspiracy" and the "very substantial period of time" between the criminal activity with which he was charged and the date of his arrest. As such claims do not fall within the exceptions outlined in 18 U.S.C. § 3582(c)(2), they cannot form the basis of a sentence modification pursuant to that statute.
Furthermore, the Court notes that in sentencing Harvey, the Court in fact stated that: 1) the offense conduct took place from January to July 2003; 2) that, since 2003, Harvey had been employed with a company in Cincinnati, Ohio; and 3) that it considered the factors outlined in 18 U.S.C. § 3553(a), including "the nature and circumstances of the offense and the history and characteristics of the defendant," in imposing its sentence. During the sentencing hearing, Harvey's counsel urged the Court to consider, inter alia, Harvey's "post criminal conduct rehabilitation" in the four year period since the offense conduct occurred, Sent. Tr. at 5, and the Court, "keeping in mind certain of the matters that [Harvey's counsel] raised," reduced the sentence to 70 months from the 78 months outlined in the Court's draft sentencing opinion.
Conclusion
For the reasons set forth above, Harvey's motion is denied.
It is so ordered.