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U.S. v. MALONE

United States District Court, N.D. Illinois


July 1, 2004.

United States
v.
Malone.

The opinion of the court was delivered by: PHILIP REINHARD, District Judge

MEMORANDUM OPINION AND ORDER

Deetreca Faye Malone, a federal prisoner, has filed pro se a "motion" which seeks a "sentence reduction" because her trial attorney failed to advise her of a four-level increase in her sentence based on U.S.S.G. 2K2.1(b)(5).

While not expressly identified as such, the court considers the motion to be the functional equivalent of a motion brought under 28 U.S.C. § 2255. See Carter v. United States, 312 F.3d 832 (7th Cir. 2002). Thus, the court hereby informs Malone of its intent to characterize the motion as one under section 2255, warns Malone that the characterization will subject any subsequent section 2255 motion to the restrictions applicable to second or successive section 2255 motions (see 28 U.S.C. § 2255 par. 8), and provides Malone the opportunity to either withdraw or amend the motion. See Williams v. United States, 366 F.3d 438, 439 (7th Cir. 2004), citing Castro v. United States, 124 S.Ct. 786 (2003). Should Malone decide to withdraw or amend the motion, she has 30 days from the date of this order to do so by filing a notice of withdrawal or an amended motion.

20040701

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