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U.S. v. Gillispie, 5:12-cr-29-JMH-REW (2016)

Court: District Court, E.D. Kentucky Number: infdco20160927d43 Visitors: 7
Filed: Sep. 26, 2016
Latest Update: Sep. 26, 2016
Summary: MEMORANDUM OPINION & ORDER JOSEPH M. HOOD , Senior District Judge . This matter is before the Court upon the Recommended Disposition of United States Magistrate Judge Robert E. Wier [DE 128], wherein he recommends that Defendant-Petitioner Allison Renee Gillispie's Motion to Vacate under 28 U.S.C. 2255 [DE 126] be construed as a Motion for Sentence Reduction under 18 U.S.C. 3582(c)(2). As noted in the Recommended Disposition, Gollispie seeks a sentence reduction based on U.S.S.G. Amendm
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MEMORANDUM OPINION & ORDER

This matter is before the Court upon the Recommended Disposition of United States Magistrate Judge Robert E. Wier [DE 128], wherein he recommends that Defendant-Petitioner Allison Renee Gillispie's Motion to Vacate under 28 U.S.C. § 2255 [DE 126] be construed as a Motion for Sentence Reduction under 18 U.S.C. § 3582(c)(2). As noted in the Recommended Disposition, Gollispie seeks a sentence reduction based on U.S.S.G. Amendment 794. Such relief is properly pursued by filing a motion under 18 U.S.C. § 3582(c)(2), not 28 U.S.C. § 2255. United States v. Jones, 143 F. App'x 527, 527 (4th Cir. 2005). Judge Wier further recommends that Defendant Gillispie's construed § 3582 motion be denied because Amendment 794 is not specifically enumerated in U.S.S.G. § 1B1.10. United States v. Goodloe, 388 F. App'x 500, 506 (6th Cir. 2010). Therefore, the Amendment cannot be applied on resentencing under § 3582. Id.

Generally, a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge. 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently, and in the absence of any objections from Gillispie, this Court adopts the wellarticulated and detailed reasoning set forth in the Recommended Disposition as its own.

Accordingly, IT IS ORDERED as follows:

(1) United States Magistrate Judge Robert E. Wier's Recommended Disposition [DE 128] is hereby ADOPTED IN FULL as the findings of fact and conclusions of law of the Court;

(2) Defendant-Petitioner Allison Renee Gillispie's Motion to Vacate under 28 U.S.C. § 2255 [DE 126] is hereby DENIED;

(3) Defendant-Petitioner Allison Renee Gillispie's Motion to Vacate under 28 U.S.C. § 2255 [DE 126]is hereby CONSTRUED as a Motion for Sentence Reduction under 18 U.S.C. § 3582; and

(4) Defendant Gillispie's construed Motion for Sentence Reduction under 18 U.S.C. § 3582 [DE 126] is hereby DENIED.

Source:  Leagle

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