Tuesday, January 11, 2011

United States v. London

United States v. London, No. 6:09-cr-566-GRA-6, 2011 WL 31294 (D.S.C. Jan 5, 2011):

What is the proper vehicle for bringing a motion to reduce sentence pursuant to the so-called "crack amendment"?  Requests for sentence reductions under the Fair Sentencing Act of 2010 are cognizable as petitions under § 2255. See, e.g., United States v. Boyd, No. 08-70, 2010 WL 5373923 (E.D.La. Dec.21, 2010); Brazleton v. United States, No. 3:10-cv-382-RM, 2010 WL 5391579 (N.D.Ind. Dec.21, 2010); Coleman v. Owen, No. 0:10-2151-SB-PJG, 2010 WL 3842381 (D.S.C. Aug.30, 2010), adopted by district judge, 2010 WL 4337995 (Oct. 22, 2010). Indeed, at least one court in this District has suggested that a § 2255 petition is the sole vehicle for this particular claim. See Coleman, 2010 WL 3842381, at *3.

As an alternative to considering Defendant's Motion under § 2255, Defendant's Motion could reasonably be construed as a motion for a sentence reduction pursuant to 18 U.S.C. §§ 3582(c)(1)(B) and/or 3582(c)(2). See United States v. Jones, No. 4:98-cr-89, 2010 WL 5057089 (W.D.N.C. Dec.6, 2010) (construing request for retroactive application of the Fair Sentencing Act of 2010 as a § 3582(c)(2) motion). 18 U.S.C. § 3582(c)(1)(B) provides that “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(2) permits a court to reduce the sentence of a defendant whose prison sentence was based on a sentencing range that has subsequently been lowered by the United States Sentencing Commission, provided that such a reduction is consistent with applicable policy statements issued by the Commission.

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