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U.S. v. MULLINS, CR-08-66-JHP. (2012)

Court: District Court, E.D. Oklahoma Number: infdco20120201b80 Visitors: 8
Filed: Jan. 30, 2012
Latest Update: Jan. 30, 2012
Summary: ORDER JAMES H. PAYNE, District Judge. Before the Court is Defendant/Petitioner Tonia Rene Mullins' Motion for Downward Departure, 1 Government's Response in Opposition to Defendant's Motion for Downward Departure, 2 and Petitioner's Response [sic] to Government's Response in Opposition to Defendant's Motion for Downward Departure. 3 As detailed below, this Court lacks jurisdiction to modify Defendant/Petitioner's sentence. Therefore, Defendant/Petitioner's Motion for Downward Departure mus
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ORDER

JAMES H. PAYNE, District Judge.

Before the Court is Defendant/Petitioner Tonia Rene Mullins' Motion for Downward Departure,1 Government's Response in Opposition to Defendant's Motion for Downward Departure,2 and Petitioner's Response [sic] to Government's Response in Opposition to Defendant's Motion for Downward Departure.3 As detailed below, this Court lacks jurisdiction to modify Defendant/Petitioner's sentence. Therefore, Defendant/Petitioner's Motion for Downward Departure must be DENIED.

Defendant/Petitioner was charged with Conspiracy to Use Interstate Commerce Facilities in the Commission of Murder for Hire, in violation of 18 U.S.C. §1958.4 On June 8, 2009, following entry of a guilty plea, this Court sentenced Defendant/Petitioner to 72 months' imprisonment.5 Defendant/Petitioner neither directly appealed nor filed a motion pursuant to 28 U.S.C. §2255. Defendant/Petitioner now files the instant "Motion for Downward Departure", two years after her Judgment and Commitment, seeking an 18-month sentence reduction based on her participation in numerous education and rehabilitation programs during her incarceration.6

"[A] district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authority."7 Where a motion for sentencing reduction "is not a direct appeal or a collateral attack under 28 U.S.C. §2255, the viability of [the] motion depends entirely on [the applicability of] 18 U.S.C. §3582(c)."8 Under Section 3582(c), a court may not modify a term of imprisonment once it has been imposed except in three limited circumstances:

First, upon motion of the Director of the Bureau of Prisons, a court may reduce the term of imprisonment if it finds special circumstances exist. Second, a court may modify a sentence if such modification is `otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.' Finally, 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).9

The sentence from which Defendant/Petitioner seeks a downward departure was imposed by this Court on June 8, 2009. Without some statutory authority, this Court is without jurisdiction to grant a departure. Defendant/Petitioner offers no statutory authority to support her position, and does not bring this motion either as a direct appeal of her sentence or as a collateral attack under 28 U.S.C. §2255.10 Lacking any other statutory authority, and outside the avenues of direct appeal and collateral attack, Defendant/Petitioner's motion must be considered in light of 18 U.S.C. §3582(c).11

Defendant/Petitioner has not provided any motion from the Director of the Bureau of Prisons that would permit the Court to review her case for "special circumstances." Further, Defendant/Petitioner has offered no allegations of "arithmetical, technical, or other clear error" or that her sentence was otherwise incorrect, therefore obviating a Rule 35 analysis. Finally, Defendant/Petitioner has not alleged that she was sentenced under a Guidelines range that has subsequently been lowered by the Sentencing Commission. Defendant/Petitioner's only support lies in cases that are all procedurally distinct from the instant one.12 Without a showing that one of the three §3582(c) factors apply, this Court is without jurisdiction to modify Defendant/Petitioner's sentence. As this court is without jurisdiction to hear Defendant/Petitioner's Motion for Downward Departure, the Motion is rightfully DENIED.

IT IS SO ORDERED.

FootNotes


1. Docket No. 48.
2. Docket No. 53.
3. Docket No. 54.
4. Complaint, Docket No. 1.
5. Government's Response at 1, Docket No. 53.
6. Motion for Downward Departure at 3-5, Docket No. 48.
7. United States v. Smartt, 129 F.3d 539, 540 (10th Cir.1997) (quoting United States v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997)).
8. Smartt, 129 F.3d at 540.
9. Smartt, 129 F.3d at 540-541 (internal citations omitted).
10. In fact, Defendant/Petitioner specifically waived her right to collaterally attack her sentence. See Government's Response at 5, Docket No. 53.
11. See Smartt, 129 F.3d at 540-541.
12. After review of Defendant/Petitioner's cited cases, the Court concurs with the Government's position that all of Defendant/Petitioner's cited cases stem from either initial sentencing proceedings or resentencing on remand following a successful appeal or post-conviction challenge. See Motion for Downward Departure at 2-3, Docket No. 48 (citing Koon v. U. S., 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (departure on remand, resentencing); Pepper v. U.S., ___ U.S. ___, 131 S.Ct. 1229 (2011) (departure on remand, resentencing); U.S. v. Sally, 116 F.3d 76 (3rd Cir.1997) (departure on remand, resentencing); U.S. v. Brock, 108 F.3d 31 (4th Cir.1997) (direct appeal of initial sentence); U.S. v. Kapitzke, 130 F.3d 820 (8th Cir.1997) (Government appeal of departure at initial sentencing); U.S. v. Willey, 350 F.3d 736 (8th Cir.2003) (Government appeal of departure at initial sentencing); U.S. v. Green, 152 F.3d 1202 (9th Cir.1998) (Government appeal of departure at initial sentencing).
Source:  Leagle

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