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United States v. Tabb

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 16, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DIMARCUS TARAH TABB, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Dimarcus Tarah Tabb's second pro se motion for a reduction of his criminal sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 204) and motion for appointment of counsel (Doc. 205). He asks the Court to reduce his sentence using the discretion recognized by Kimbrough v. United States, 552 U.S. 85 (2007), and confirmed by Spears v. United States, 129 S.Ct. 840 (2009), and United States v. Knox, 573 F.3d 441 (7th Cir. 2009). Each of those cases, however, involved a direct review of a criminal sentence that was not yet final, not a reduction pursuant to 18 U.S.C. § 3582(c)(2) after a sentence had become final, as is the case with Tabb. Those cases do not authorize the Court to reduce Tabb's sentence.

Tabb believes 18 U.S.C. § 3582(c)(2) itself authorizes the Court to exercise its Kimbrough discretion to reduce his sentence. However, in an order dated June 9, 2009 (Doc. 201), the Court explained that 18 U.S.C. § 3582(c)(2) only authorizes a reduction where "a defendant . . . 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)." As that order explained, Tabb's sentencing range had not been lowered and, as a consequence, the Court lacked subject matter jurisdiction to reduce his sentence under 18 U.S.C. § 3582(c)(2).

See United States v. Lawrence, 535 F.3d 631, 637-38 (7th Cir. 2008); United States v. Forman, 553 F.3d 585, 588 (7th Cir.), cert. denied, 129 S.Ct. 2817 (2009).

For the reasons set forth in the Court's June 9, 2009 order (Doc. 201), the Court DISMISSES the pending motion for a reduction (Doc. 205) for lack of jurisdiction. As the presence of counsel would not have made a difference in this result, the Court DENIES Tabb's motion for appointment of counsel (Doc. 205).

IT IS SO ORDERED.

20091016

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