The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Before the Court is Defendant Brian T. Williams' ("Williams") Motion to Modify Sentence Under 18 U.S.C. § 3582(c)(2). For the reasons that follow, Williams' Motion [#66] is DENIED and the Government's Motion [#67] is GRANTED.
On December 6, 1999, Williams pled guilty to one count of conspiracy to distribute a controlled substance in violation of 18 U.S.C. § 846. On September 22, 2000, Williams was sentenced pursuant to a stipulated sentencing agreement to 240 months imprisonment and three years of supervised release. Williams was also ordered to pay a $100 special assessment. Williams' guilty plea included a waiver of his right to direct appeal and therefore Williams did not file a direct appeal with the Court of Appeals.
On March 5, 2001, Williams filed a Motion to Withdraw Constitutionally Invalid Guilty Plea and subsequently filed a Motion to Add Amendments to his 28 U.S.C. § 2255 motion. The Court construed Williams' pleading as a motion to set aside his sentence pursuant to 28 U.S.C. § 2255. The Court denied the motion finding that Williams' had waived his right to collaterally attack his sentence in his sentencing agreement and during the sentencing colloquy and that Williams had failed to demonstrate that his counsel was ineffective in negotiating his plea.
On July 2, 2001, Williams filed a Motion to Amend Judgment Pursuant to Rule 59(e). The Court denied the Motion finding that Williams had failed to set forth a manifest error of law or fact that would provide the Court with any basis to amend its previous decision. Williams appealed the Court's ruling on his Rule 59(e) motion and filed a Motion for a Certificate of Appealability. This Court declined to issues a Certificate of Appealability finding that Williams waived his right to pursue collateral relief and "no claims before the court [came] close to presenting issues debatable among jurists of reason."
Williams then filed a Pro Se Petition for a Certificate of Appealability directly to the Seventh Circuit on October 23, 2001. The Seventh Circuit denied the Motion on November 21, 2001.
On June 27, 2003, Williams filed a Pro Se Petition for Reduction of Sentence Pursuant to 18 U.S.C. § 3582 and Amendment 591 to the United States Sentencing Guidelines. Construing Williams' motion as a second or successive 28 U.S.C. § 2255 motion, this Court dismissed Williams' motion for lack of jurisdiction because Williams had not received authorization to bring a second or successive § 2255 motion from the Seventh Circuit Court of Appeals. Williams filed a Notice of Appeal of the Court's decision on July 28, 2003. The Seventh Circuit issued an Order denying Williams' request stating "the district court correctly construed the filing as an unauthorized § 2255 motion and dismissed it. Because Williams's motion is actually a collateral attack, he cannot proceed without a certificate of appealability."
On March 26, 2004, Williams filed an application with the Seventh Circuit for an order authorizing the district court to consider a second or successive § 2255 motion. The Seventh Circuit dismissed the motion as unnecessary. Relying on Castro v. United States, 540 U.S. 375 (2003), the Court of Appeals found that this Court properly advised Williams that it was going to construe his motion as his initial § 2255 motion; however, this Court failed to warn Williams of the limitations that could result on any future attempts to file a second or successive § 2255 motion. Accordingly, the Court of Appeals found that Williams' June 2003 motion did not count as an initial § 2255 motion for purposes of paragraph 8 of § 2255.*fn1
On June 17, 2004, Williams filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Williams alleged that his counsel was ineffective in negotiating the sentencing agreement and waiver provisions of the sentencing agreements. This Court denied the motion on July 19, 2004. The Court found that even if the Seventh Circuit's opinion resurrected Williams' June 2003 motion, nothing in the Court of Appeals Order relieved Williams of the responsibility for bringing his § 2255 motion within one year of the day that his conviction became final. Williams appealed this Court's order and both this Court and the Seventh Circuit denied Williams' requests for a Certificate of Appealability.
On April 10, 2006, Williams filed the instant Motion for Modification of Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 591 of the United States Sentencing Guidelines. In the motion, Williams cited Castro v. United States as support for his argument that this Court should not construe the instant motion as a motion pursuant to § 2255. Williams argues that Amendment 591 entitles him to relief because he did not have a formal plea agreement and his indictment did not contain a drug amount. The Government responded to Williams' motion arguing that (1) Williams' motion is essentially a second or successive § 2255 motion; (2) the motion is untimely; and (3) Williams waived his right to collaterally attack his sentence in his sentencing agreement and sentencing colloquy.
In light of the Seventh Circuit's recent decision in Yanez v. United States, Case No. 05-4212 (7th Cir., January 26, 2006), this Court agrees with Williams that his § 3582 petition should not be construed as a motion pursuant to 28 U.S.C. § 2255. Petition Yanez filed a Motion to Modify his Sentence pursuant to 18 U.S.C. § 3582 and Amendment 591 in this Court. This Court construed the motion as a second or successive § 2255 motion filed without authorization and dismissed the motion for lack of jurisdiction. The Seventh Circuit vacated and remanded that decision finding that "a motion under § 3582(c)(2) is not a collateral attack of any kind, and consideration of a request under that statute does not require [the Court of Appeals'] permission." Although the decision in Yanez appears to contradict the Seventh Circuit's order in this case dated September 19, 2003, where the Court found that a motion pursuant to 18 U.S.C. § 3582(Cc)(2) and Amendment 591 was properly considered as a second or successive § 2255 motion requiring authorization from the Court of Appeals, the Yanez decision is more recent and therefore is controlling.*fn2 Accordingly, the Court will proceed to address the merits of Williams' motion.
Williams argues that he is entitled to relief because Amendment 591 modified the Sentencing Guidelines and was made retroactive to his case. Amendment 591, made effective November 1, 2000, was not in effect when Williams was initially sentenced on September 22, 2000. However, Amendment 591 does appear on the list of retroactively applicable sentencing guideline amendments set forth in USSG § 1B1.10(c), making it available for ...