United States District Court, N.D. Illinois, Eastern Division
June 10, 2004.
UNITED STATES OF AMERICA, Plaintiff,
DERRICK JARRETT, Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Derrick Jarrett's Motion for Sentence Modification
Under 18 U.S.C. § 3582(c)(2) is before this court. For the
following reasons, this court denies the motion in its entirety.
Following a month-long trial, on February 14, 1996, a jury
found Jarrett guilty of conspiracy to possess heroin with intent
to distribute in violation of 21 U.S.C. § 846 and multiple counts
of possessing heroin with intent to distribute in violation of
21 U.S.C. § 841. On June 19, 1996, this court sentenced Jarrett to
serve 235 months' imprisonment. Jarrett appealed, and on January
8, 1998, the Seventh Circuit affirmed his conviction and
sentence. See United States v. Jarrett, 133 F.3d 519 (7th
Jarrett subsequently filed a § 2255 petition for a writ of
habeas corpus. In it, he set forth four grounds for relief: (1)
that he was denied effective assistance of trial counsel; (2)
that he was denied effective assistance of appellate counsel; (3)
that the trial court's calculation of the amount of drugs for
purposes of determining the applicable sentencing guideline range
was clearly erroneous; and (4) that the trial court erred in
finding that Jarrett was a member of the conspiracy from the beginning. Thereafter, Jarrett filed a motion
to amend his § 2255 petition, arguing that pursuant to Apprendi
v. New Jersey, 530 U.S. 466 (2000), the finder of fact, rather
than the trial court, should have determined the amount of
narcotics involved in the conspiracy. He also filed motions for
the appointment of counsel and for an evidentiary hearing. On
April 30, 2001, this court denied Jarrett's § 2255 petition, as
well as the three aforementioned motions filed by him in
connection therewith, See McCarroll and Jarrett v. United
States, Nos. 99 C 3168 & 99 C 275, 2001 U.S. Dist. LEXIS 5618
(N.D. Ill. May 2, 2001).
More than two years later, on July 7, 2003, Jarrett filed a
Motion for Sentence Modification Pursuant to Title
18 U.S.C. § 3582(c)(2). In it, he purports to seek a modification of his
sentence under amendment 635 to the Application Notes of United
States Sentencing Guidelines ("U.S.S.G.") § 3B1.2 (Mitigating
Role), effective November 1, 2001. Citing section 3B1.2(4)
(Minimal Participant) specifically, he premises his motion upon
his allegedly minimal role and relatively lesser amount of
culpability (as compared to his co-defendants) in the offenses of
conviction. In his motion, Jarrett also cites subsections (3)(A)
(Applicability of Adjustment) and (5) (Minor Participant).
Jarrett contends that 18 U.S.C. § 3582 grants this Court
jurisdiction to entertain his motion and that sub-section (c)(2),
specifically, provides the vehicle for this court to grant him
the requested relief. Neither contention is meritorious.
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). Section 3582(c)(2) provides:
[I]n 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.
18 U.S.C. § 3582(c)(2) (emphasis added). None of the bases set
forth in section 3582 for modification of a sentence is
applicable in the present case.
Section 1B1.10 of the U.S.S.G. is the relevant "policy
statement" here. That section specifically and exhaustively lists
the amendments whose retroactive application under section
3582(c)(2) is authorized. See U.S.S.G. 1B1.10(c). It further
provides that, "[i]f none of the amendments listed in subsection
(c) is applicable, a reduction in the defendant's term of
imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with
this policy statement and thus is not authorized." U.S.S.G. §
The amendment at issue in this case (635), which was effective
November 1, 2001, does not apply retroactively pursuant to § 3582
because it is not included in section 1B1.10(c)'s list of
retroactively applicable amendments. Therefore, this court is
without jurisdiction to entertain Jarrett's motion, and neither
18 U.S.C. § 3582 nor the amended U.S.S.G. § 3B1.2 provides any
basis for the requested modification of Jarrett's sentence. See,
e.g., Ebbole v. United States, 8 F.3d 530, 539 (7th Cir.
1993) (declining to apply U.S.S.G. § 3E1.1 retroactively on
grounds that amendment to section did not appear in list of
amendments in section 1B1.10(d)). III. Conclusion
Based upon the foregoing, this court denies Jarrett's Motion
for Sentence Modification Pursuant to Title
18 U.S.C. § 3582(c)(2) in its entirety.
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