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United States v. Dowell

November 23, 2009

UNITED STATES OF AMERICA
v.
MILTON DOWELL



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the court on Defendant Milton Dowell's Motion to Modify Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, the motion is denied.

I. Background

On October 1 and 28, 1998, Defendant Milton Dowell twice attempted to purchase cocaine from an undercover agent of the Drug Enforcement Administration. He was subsequently charged by a special grand jury on July 29, 1999 with two counts of knowingly and intentionally attempting to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). On December 12, 2002, a jury convicted him on both counts. The court later sentenced him as a career offender under the United States Sentencing Guidelines to incarceration for 360 months.

Dowell appealed his sentence to the United States Court of Appeals for the Seventh Circuit. He raised two issues on appeal: (1) whether the sentencing court used an incorrect standard in denying a motion for a downward departure pursuant to United States Sentencing Guidelines § 5H1.4; and (2) whether, because the Bureau of Prisons does not provide organ transplants, incarcerating him was a violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Seventh Circuit affirmed the district court's decision on October 27, 2004.

On January 27, 2006, Dowell filed a petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in case 06-cv-0519, raising new issues as to why he believed he was entitled to relief. He argued: (1) the government failed to establish proper jurisdiction when it prosecuted him on an indictment rather than a complaint; (2) he was convicted of an offense not charged in the indictment; and (3) variations on the theme of ineffective assistance of counsel. The district court denied Dowell's petition on January 22, 2006. Dowell appealed this ruling to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit entered an order dated May 7, 2007, denying Dowel's request for a certificate of appealability, stating that the court had "reviewed the final order of the district court and the record on appeal," and they found "no substantial showing of the denial of a constitutional right."

On August 25, 2009, Dowell filed the instant motion, requesting that this Court amend his term of imprisonment and appoint him counsel.

II. Discussion

We first address the issue of appointment of counsel, and then the issue of modification of the term of imprisonment.

A. Request for Counsel

There is no statutory or constitutional right to counsel for § 3582(c)(2) motions - "[t]he judge can appoint counsel for a movant, but need not do so." United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999). See also United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 520, 512-13 (9th Cir. 1996); United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995). The decision to appoint an attorney for § 3582(c)(2) motions is left to the discretion of the district court.

There is no indication that Mr. Dowell is incapable of representing himself. Accordingly, his request for appointment of counsel is denied.

B. Request to Amend the Term of Imprisonment

Dowell's motion seeks relief under 18 U.S.C. § 3582(c)(2) based on "Amendment 9." However, as the government points out, Amendment 9 is not included in the list of Guidelines amendments for which § 3682(c)(2) relief may be granted. See Guideline § 1B1.10(c). Therefore, we interpret Dowell's request for relief as a claim under Amendment 706. See Gomez-Diaz v. United States, 433 F.3d ...


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