See United States v. Owens, --- F. App’x ---, No. 15-2719, at 2-3 (7th Cir. Feb. 22, 2016) (non-precedential unpublished order). As the Seventh Circuit explained in Owens, a defendant’s waiver of any motion to “modify” sentence in a plea agreement precludes a motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). The Court need go no further to resolve this case.

The court then explained: Viewed that way, proceedings under 18 United States Code section 3582(c)(2) do not implicate the Sixth Amendmentrightto have essential facts found by a jury beyond a reasonable doubt. Taking the ori ginal sentence as given, any facts found by a judge at a section 3582(c)(2) proceeding do notserveto increase the prescribe d range of punishment; instead, they affect only the judge’s exercise of discretion within that range. ‘Judgesin this count ry have long exercised discretion ofthis nature in imposing sentence within establishedlimits in the individual case,’ and the exercise of such discretion does not contravene the Sixth Amendmenteven ifit is informed by judge-foundfacts. (People v. Bradford, supra, 227 Cal.App.4th at p. 1335.)

Instead, it provided for resentencing at the court’s discretion. (Dillon v. United States, supra, 560 U.S.at pp. 820-821; see also 18 U.S.C.§ 3582, subd. (2) [court “may” resentence].) By contrast, Penal Code section 1170.126 creates a mandatory reduction in sentence when certain criteria are met. Thus the Reform Act, unlike the statute at issue in Dillon, does not provide the court with limited discretion to modify an existing sentence; it requires that the sentence be reduced absent additional findings.

Instead, it provided that the court “may” resentence. (Dillon v. United States, supra, 560 U.S. at pp. 820-821; see also 18 U.S.C. § 3582, subd. (2) [court “may” resentence].) By contrast, Penal Code section 1170.126 creates a mandatory reduction in sentence.

1110.) To the government’s 1 On February 6, 2015, the defendant’s sentence was reduced by agreement of the parties to 235 months imprisonment, pursuant to 18 U.S.C. § 3582(c)(2) based on the passage of Amendment 782. (Doc.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, : v. : 07-CR-191 (RJL) SYLVAN D. ABNEY. : MOTION FOR HEARING OR ORDER ON UNOPPOSED MOTION TO REDUCE SENTENCE On October 3, 2012, Mr. Sylvan D. Abney, through undersigned counsel, filed an unopposed motion, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, requesting a reduction in his sentence of 120 months incarceration to a term of 63 months. Given the unique circumstances that resulted in Mr. Abney being sentenced based on the pre-Fair Sentencing Act mandatory minimum (120 months), when he should have been sentenced based on the reduced mandatory minimum under the Fair Sentencing Act (60 months), the government has represented that it does not oppose Mr. Abney’s motion.

489. In this instance, the petitioner knowingly waived “the right 3 Case 1:12-cv-00035 Document 11 Filed 08/09/12 Page 3 of 9 PageID #: 149 to appeal any sentence within or below the guideline range associated with the Recommended Offense Level when combined with defendant’s criminal history category as determined by the Court.” The petitioner also waived “the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” Criminal Action No.1:09-00009; Docket Entry No.129 at pg.16.

Other statutory sections also give the district court direction in sentencing. Under 18 U.S.C. § 3582, imposition of a term of imprisonment is subject to the following limitation: in determining whether and to what extent imprisonment is appropriate based on the Section 3553(a) factors, the judge is required to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation” (emphasis added). Under 18 U.S.C. § 3661, “no limitation shall be placed on the information concerning the background, character, and conduct of [the defendant] which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence” (emphasis added).

Rehabilitation The government also neglects to discuss the remaining factors in § 3553(a)(2), including rehabilitation. Mr. Safavian’s active steps to pursue another career and start a new business in lieu of disbarment; his active role in his church and affiliated service; and his commitment to his young daughter and wife render imprisonment not only an “[in]appropriate means of promoting correction and rehabilitation,” 18 U.S.C. § 3582(a), but a hindrance to such remedies. The sine qua non of § 3553(a)(2) is that a sentencing court must impose the minimum sentence necessary to achieve the goals of retribution, deterrence, and rehabilitation.