The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Eisenhauer Rodriguez's Motion for Review of Sentence Pursuant
to Title 18 U.S.C. § 3742 and for Downward Departure Pursuant to
U.S.S.G. Section 5K2 is before this court.
Rodriguez framed his motion as one brought pursuant to 18 U.S.C. § 3742,
based upon his contentions that the sentence was imposed in violation of
the law, was imposed as a result of incorrect application of the United
States Sentencing Guidelines, and is greater than the maximum sentence
provided for by the Guidelines. Rodriguez did not, in his motion or his
supporting memorandum, further define or address his vague contentions in
that regard.*fn1 Instead, the only substance of Rodriguez's submissions
is his request for a downward departure on two grounds: (1) his
"extraordinary efforts and post-conviction rehabilitation;" and (2) his
status as a deportable alien. In furtherance of his motion, Rodriguez
seeks an evidentiary hearing and the appointment of counsel pursuant to
18 U.S.C. § 3006A.
For the following reasons, this court dismisses the motion in its
On October 15, 1999, Rodriguez pled guilty to possession with intent to
distribute heroin, in violation of 21 U.S.C. § 841(a)(1). On February
2, 2000, this court sentenced Rodriguez to 70 months' imprisonment.
Rodriguez filed a direct appeal on March 3, 2000 (No. 00-1574).*fn2
Subsequently, his appointed counsel filed a motion to withdraw under
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In his briefing
on the motion, counsel identified two potential issues for appeal, both
of which he believed to be frivolous. In his Rule 5 l(b) response,
Rodriguez cited two additional potential grounds for appeal: (1) that the
district court should have departed downward because his status as a
deportable alien will likely cause his conditions of confinement to be
more severe than those encountered by most inmates; and (2) that the
district court erred by holding him accountable for a drug quantity
greater than that involved in the offense of conviction (i.e., by
including in its calculation of the quantity drugs that were part of the
same course of conduct as the charged offense).
The Seventh Circuit addressed in turn each of the four potential
grounds for appeal and found that none would enable Rodriguez to prevail
on direct appeal. Accordingly, on October II, 2000, it granted counsel's
motion and dismissed Rodriguez's appeal, concluding that an appeal would
be frivolous. See United States v. Rodriguez, No. 00-1574, 2000 U.S.
App. LEXIS 25656 (7th Cir. Oct. 11, 2000). Rodriguez did not file a
petition for certiorari to the United States Supreme Court.
On July 6, 2001, Rodriguez filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255 (No. 01 C 5231), articulating four grounds
for relief. The two stated bases for Rodriguez's instant request for
relief (i.e., his status as a deportable alien and his post-conviction
rehabilitation efforts) were not included among them. Rodriguez
subsequently filed a motion to withdraw his petition, which the court
granted on September 13, 2001,*fn3
Proceeding pro se, Rodriguez filed the instant motion on September 9,
2002, seeking review of his sentence and, specifically, a downward
departure therein. As directed by the court, the government filed its
response to Rodriguez's motion on December 2, 2002. However, the date
designated by the court for Rodriguez to file his reply came and went
without his filing any reply (and none has been filed, to date).
18 U.S.C. § 3582 defines the circumstances under which district courts
may modify sentences and otherwise prohibits district courts from doing
so, unless "expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). As an initial
matter, none of the bases for modifying a sentence set forth in section
3582 is applicable in the present case (and Rodriguez does not contend
otherwise). Moreover, the clear terms of Rule 35 indicate that it does
not authorize the district court to review and/or modify Rodriguez's
sentence at this juncture.
Rodriguez purported to bring his motion pursuant to 18 U.S.C. § 3742.
statute confers jurisdiction only upon the court of appeals to review a
sentence, and not upon the district court. Because section 3742 does not
grant jurisdiction to this court to entertain Rodriguez's motion, it must
Notwithstanding that Rodriguez purported to bring his motion pursuant
to 18 U.S.C. § 3742, he framed his claim concerning his status as a
deportable alien as one for ineffective assistance of counsel. See Mem.
p. 1 ("Counsel was well aware that Defendant is an alien. Inspite [sic] of
this, Counsel failed to raise the issue of deportability and harsher
conditions of confinement Defendant may experience as mitigating
circumstances at sentencing. Defendant claims that this prejudicial
ommission [sic] by Counsel constitutes a performance below accepted
professional standards warranting resentencing."). Even if this court were
to consider the entire motion ...