United Statesv.Spalding

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTONApr 9, 2012
CRIMINAL ACTION: 5:08-162-KKC (E.D. Ky. Apr. 9, 2012)

CRIMINAL ACTION: 5:08-162-KKC

04-09-2012

UNITED STATES OF AMERICA, PLAINTIFF v. KEVIN MARCUS SPALDING, DEFENDANT


OPINION AND ORDER

This matter is before the Court on the Defendant's pro se Motion to Vacate under 28 U.S.C. § 2255 (DE 50). The motion was referred to the United States Magistrate Judge for consideration. On August 29, 2011, the Magistrate Judge entered a Recommended Disposition (DE 59) in which he recommends that the Defendant's motion be denied and that a Certificate of Appealability not be issued.

The docket indicates that the Clerk of the Court mailed the Recommended Disposition to the Defendant at his address then on record -- Beaumont U.S. Penitentiary -- but that the mailing was returned as undeliverable. The Court has been advised that the Defendant's current address is Talladega Federal Correctional Institution and his address has been updated on the docket. However, it is not clear if the Recommended Disposition was mailed to the Defendant at the Talladega address. Accordingly, to be certain that the Defendant has an opportunity to object to the Recommended Disposition, the Court will order the Clerk of the Court to mail it to the Defendant at his Talladega address and will allow the Defendant to file objections within 14 days of being served with the Recommended Disposition.

Also before the Court is a letter from the Defendant that the Clerk of the Court has docketed as a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense under 18 U.S.C. § 3582. (DE 61.) The Defendant pleaded guilty to one count of possessing with intent to distribute five grams or more of a substance containing a detectable amount of crack cocaine in violation of 21 U.S.C. § 841(a)(1). This Court sentenced him to a prison term of 120 months. His Guideline range was 262 to 327 months.

The Court has reviewed the Defendant's record to determine whether he is eligible for a reduction in his sentence under 18 U.S.C. § 3582(c)(2). Pursuant to § 3582(c)(2), a court may modify a term of imprisonment if a defendant's sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission and if such a reduction would be consistent with applicable Guidelines' policy statements. See 18 U.S.C. § 3582(c)(2); USSG § 1B1.10(a)(1). A reduction is inconsistent and therefore not authorized where the applicable Guidelines Amendment does not have the effect of lowering a defendant's Guideline range. USSG § 1B.10(a)(2)(B).

The Court assumes that the Defendant seeks a sentence reduction under Amendment 706 which lowered the base offense level for most crack-cocaine narcotics offenses by two levels. See USSG Supp.App. C, amend. 706 (effective Nov. 1, 2007) and amend. 713 (declaring Amendment 706 retroactive effective March 3, 2008). Amendment 706 is a covered amendment justifying consideration for a § 3582(c)(2) sentence reduction. See USSG § 1B1.10(c).

The Defendant's sentence was based on his status as a career offender under USSG § 4B1.1, not on his underlying drug offense. Accordingly, he is not eligible for a sentence reduction under Amendment 706. United States v. Bridgewater, 606 F.3d 258, 260-61 (6th Cir.2010). Thus, his Motion for Retroactive Application of Sentencing Guidelines (DE 61) will be denied.

For all these reasons, the Court hereby ORDERS as follows:

1) The Clerk of the Court is DIRECTED to mail a copy of the Recommended Disposition (DE 59) to the Defendant at his most recent address on record as indicated in the docket;

2) Any objections to the Recommended Disposition must be filed by the Defendant within 14 days of his receipt of a copy of it; and

3) The Defendant's Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense under 18 U.S.C. § 3582 (DE 61) is DENIED.

Signed By:


Karen K. Caldwell


United States District Judge