The opinion of the court was delivered by: MILTON I. SHADUR
It is obvious that the prison grapevine is in full flower in this instance. Within the past two weeks this Court has received no fewer than five such motions from defendants lodged in different Bureau of Prisons institutions around the country, in each instance requesting the retroactive application of the Guideline § 3E1.1 amendment. This opinion is therefore not only being issued in this case but is also being published, to facilitate this Court's ability to provide like responses to other such movants in the future.
It will be assumed for purposes of this opinion that Heard could indeed qualify on a factual basis for a three-level (rather than two-level) reduction if he were being sentenced now rather than in 1991:
1. Before he received the credit for acceptance of responsibility, Heard's criminal offense level was 19 (new Guideline § 3E1.1(b) requires a level of 16 or more).
2. Heard has in fact qualified for, and was given, a two-level decrease for such acceptance of responsibility under former Guideline § 3E1.1(a) (which provision is repeated in the same subsection in the current version).
3. For the sake of argument this Court also assumes (although no finding to that effect needs to be made under the circumstances) that Heard would meet one of the alternatives now set out in new Guideline § 3E1.1(b)(1) or (2), so as to create an entitlement to the additional one-level reduction.
But Heard's problem--one that deprives him of any right to take advantage of that assumed set of facts--is that this Court simply has no power to grant such retroactive relief.
To eliminate one potential source of relief immediately, Fed. R. Crim. P. 35 plainly confers no jurisdiction that Heard could invoke for any reduction of his sentence. And because 18 U.S.C. § 3553(a)(4) expressly brings into play the Guidelines that were "in effect on the date the defendant [was] sentenced" Heard is left with only one possibility for avoiding the earlier version of Guideline § 3E1.1: the provision for post-sentencing modification that is set out in 18 U.S.C. § 3582(c)(2) ("Section 3582(c)(2)"):
(c) Modification of an imposed term of imprisonment.-- The court may not modify a term of imprisonment once it has been imposed except that--
(2) 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
There might perhaps be room for an interesting semantic debate as to whether a Guideline change by the Sentencing Commission that involves only the lowering of the defendant's criminal conduct level involves "a sentencing range that has subsequently been lowered by the Sentencing Commission," so as to bring Section 3582(c)(2) into play at all. After all, that kind of Guideline amendment does not "lower" a range as such, even though by reducing the applicable level it necessarily brings a lower range into play.