Opinion
No. 95-88-1-FR
September 8, 2000
Kristine Olson, United States Attorney, Gary J. Meabe, Special Assistant United States Attorney, Portland, Oregon, for Plaintiff.
Conrad Edwin Niemeier,#60226-065, FCI Sheridan, Sheridan, Oregon, Defendant Pro Se.
The matter before the court is the motion to reduce sentence (#122) filed by the defendant, Conrad Edwin Niemeier.
On August 11, 1997, this court entered a judgment sentencing defendant Niemeier to the custody of the Bureau of Prisons for a period of 60 months to be followed by a five-year term of supervised release.
On July 20, 2000, defendant Niemeier moved the court to reduce his sentence based upon post-conviction rehabilitation. Defendant Niemeier presents the court with his Certificate of Achievement from the Education Department for the GED Program and his Certificate of Completion for the 40 Hour Drug Abuse Program. Defendant Niemeier states in his declaration that he has worked diligently to rehabilitate himself to ensure that he never again engages in criminal activity. Defendant Niemeier further contends that he was promised a sentence reduction by the Bureau of Prisons for successful completion of the Drug Abuse Program and has now been informed that he is no longer eligible for a sentence reduction based upon the decision in Bowen v. Hood, 202 F.3d 1211 (9th Cir. 2000).
The government contends that there is no legal authority for this case to be returned to this court or for this court to impose a new sentence three years after the original judgment was entered.
APPLICABLE LAW
Rule 35 of the Federal Rules of Criminal Procedure sets forth limited circumstances under which the district court may correct or reduce a sentence previously imposed. The district court may correct a sentence determined on appeal under 18 U.S.C. § 3742 to be in violation of law and remanded by the Court of Appeals to the district court. Rule 35(a). The district court may reduce a sentence after the sentence is imposed upon motion of the government to reflect a defendant's subsequent substantial assistance. Rule 35(b). The district court may correct a sentence imposed as a result of error within seven days of the imposition of the sentence. Rule 35(c).
In United States v. Green, 152 F.3d 1202, 1208-09 (9th Cir. 1998), the court concluded that the district court is not categorically forbidden from departing downward on the basis of post-sentencing rehabilitation efforts when resentencing a defendant after the Court of Appeals has reversed the original judgment and remanded for resentencing.
RULING OF THE COURT
This court has no legal authority to revisit a sentence imposed three years ago based upon the post-conviction rehabilitative efforts of a defendant. The sentence imposed by this court has not been reversed and remanded to this court by the Court of Appeals. The government has not made a motion under Rule 35(b). The court would not be correcting an error if it were to grant defendant Niemeier's motion.
The issue raised by defendant Niemeier for a sentence reduction because he successfully completed an in-prison Drug Abuse Program is currently being litigated in Bowen v. Hood, 202 F.3d 1211, 1216 n. 3 (9th Cir. 2000).
IT IS HEREBY ORDERED that the motion to reduce sentence (#122) filed by defendant Niemeier is DENIED.