The opinion of the court was delivered by: Hutton, J.
Presently before this Court are the Petitioner's Motion for Reduction
of Sentence Pursuant to Tile 18 U.S.C. § 3582(c)(2) and U.S.S.G.
Sec. 5K2.0 as Amended Effective Sunday, November 1, 1998 (Docket No.
112), and the Government's Response in Opposition to the Petitioner's
motion (Docket No. 113).
On August 2, 1994, the Petitioner, Charles Lawrence Caldwell, was
indicted for alleged violations of 18 U.S.C. § 1951(a),
18 U.S.C. § 924(c), and 18 U.S.C. § 922(g). On January 19, 1996,
the Petitioner was convicted on all charges. On April 17, 1996, a
sentencing hearing was held where a sentence was imposed based upon a
total offense level of 20 and a criminal history category of five.
Pursuant to the sentencing guidelines, the Petitioner was sentenced to 78
months on Counts 1 and 3, 60 months on Count 2 to be served
consecutively, fines totaling $1,250, and a special assessment of $150.
The Petitioner's appeal of his conviction and sentence were denied.
After his direct appeals were denied, the Petitioner lodged several
collateral attacks against his conviction and sentence. On September 24,
1998, the Petitioner filed a motion pursuant to 28 U.S.C. § 2255
which was denied on August 12, 1999. On August 26, 1999, the Petitioner
filed a Writ of Error Coram Nobis which was denied as moot on October 7,
1999. On October 21, 1999, the Petitioner made a motion for
reconsideration of the denial of the Writ of Error which was denied on
December 21, 1999. After several unsuccessful attempts to appeal these
denials, the Petitioner filed the motion for reduction of sentence which
is the subject of this opinion.
With few exceptions, "[t]he court may not modify a term of imprisonment
once it has been imposed. . . ." 18 U.S.C.A. § 3582(c) (West 2000).
In an attempt to modify his term of imprisonment, the Petitioner invokes
the exception contained in § 3582(c)(2) and relies upon a November
1, 1998 amendment to U.S. Sentencing Guidelines Manual § 5K2.0.
Section 3582(c)(2) gives the court the authority to modify a previously
imposed sentence in "the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission." § 3582(c)(2). Section 5K2.0 is a policy statement
promulgated by the Sentencing Commission which constitutes the general
provisions governing downward departures in sentencing. See § 5K2.0.
The November 1, 1998 amendment to § 5K2.0 incorporated the Supreme
Court's holding in Koon v. United States,
518 U.S. 81, 116 S.Ct. 2035
(1996), which has since been interpreted to allow downward departures
based upon post-offense and even post-conviction rehabilitation efforts.
See United States v. Sally, 116 F.3d 76, 79-80 (3d Cir. 1997); see also
United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997). The thrust of
the Petitioner's argument is that he has engaged in the requisite
extraordinary post-conviction rehabilitative efforts which would merit a
downward departure under the new § 5K2.0. While acknowledging that
prior to November 1, 1998 it was necessary for the Defendant to be back
before the District Court for resentencing to avail himself of a downward
departure based upon post-offense rehabilitation, the Petitioner asserts
that the amendment to § 5K2.0 changed that requirement.
While understanding that § 3582(c)(2) is the proper vehicle to
modify a previously imposed sentence, the Petitioner proceeds to confuse
its function with that of § 5K2.0. Section 5K2.0 gives the court the
authority to impose a sentence outside of the sentencing range but does
not purport to establish when the Defendant may motion for a reduction in
his sentence. See § 5K2.0. To modify a term of imprisonment
previously imposed, the Petitioner must point to an exception in §
3582(c). See United States v. Thompson, 70 F.3d 279, 281 (3d Cir. 1995)
(stating applicable statute is § 3582(c)). In this motion, the
Petitioner relies upon the exception in § 3582(c)(2).
The provisions of § 3582(c)(2) are triggered when an amendment to
the guidelines results in the lowering of the sentencing range under
which a defendant was sentenced. See § 3582(c)(2). As a preliminary
matter, the Court must decide whether the amendment to § 5K2.0
resulted in the lowering of the range under which the Petitioner was
sentenced. Section 5K2.0 explains the manner in which a court should
exercise its discretion in "impos[ing] a sentence outside the range
established by the applicable guidelines. . . ." See § 5K2.0. The
language of § 5K2.0 itself indicates that it does not alter a
sentencing range but instead gives the court discretion to depart from
the sentencing range if certain circumstances are present. See §
5K2.0. Because § 5K2.0 does not provide a sentencing range, a change
in § 5K2.0 cannot represent a change in the Petitioner's sentencing
range. Without a lowering of the Petitioner's sentencing range, the
exception located in § 3582(c)(2) is not triggered.
For the foregoing reasons, the Petitioner's motion for a reduction
of sentence pursuant to § 3582(c)(2) and § 5K2.0 as Amended
Effective Sunday, November 1, 1998 is denied.
An appropriate Order follows.
AND NOW, this 27th day of April, 2001, upon consideration of the
Petitioner's Motion for Reduction of Sentence Pursuant to Tile
18 U.S.C. § 3582(c)(2) and U.S.S.G. Sec. 5K2.0 as Amended Effective
Sunday, November 1, 1998 (Docket No. 112), and the Government's Response
in Opposition to the Petitioner's motion ...