The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is a pro se a motion invoking Fed. R. Civ. P. 60(b)(6) [Dkt. 723] and a motion to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) [Dkt. 780] filed by Eric Wilson ("Petitioner"). For the reasons set forth below, the motions are DENIED.
Petitioner Eric Wilson ("Petitioner") was one of thirty nine members of the Gangster Disciples Street Gang ("GDs") who were indicted on August 30, 1995. On December 13, 1995, Petitioner was charged along with nine others in a 41-count superseding indictment for participating in a drug conspiracy in violation of 21 U.S.C. § 846 (Count 1); operating a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848(a) (Count 2); being responsible for various possessions and distributions of narcotics in violation of 21 U.S.C. § 841(a) (Counts 5-8, 10-17, 28, 38, 39); using minors to further the drug conspiracy and to avoid detection and apprehension in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2) (Counts 3 and 4); using or causing the use of telephones to facilitate narcotics crimes in violation of 21 U.S.C. § 843(b) (Counts 9, 18-27, 29-37); using a firearm or causing a firearm to be used during a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 40); and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count 41).
On March 6, 1996, a jury found Petitioner guilty on all but three telephone counts. At sentencing, the district court, upon government's motion, dismissed Count 1 (the lesser included offense of conspiracy) and proceeded to sentencing on Count 2 (the CCE charge). As a "governor" of the GDs, Petitioner was considered a "principal administrator, organizer, or leader" of a CCE to commit crimes involving more than 1.5 kilograms of cocaine base; he was therefore subject to a statutory minimum of life imprisonment under21 U.S.C. § 848(b). The district court sentenced the defendant to life imprisonment on Counts 2-6, 11, 17, and 39, to run concurrently with 20 years on Counts 7, 8, 12-16, and 41, five years on Count 40, and four years on Counts 18-27, 29, 31-36.
On August 17, 2000, the Seventh Circuit affirmed Petitioner's convictions and sentence in United States v. Smith, 223 F.3d 554 (7th Cir. 2000), cert. denied, 536 U.S. 957 (2002). Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on February 25, 2003. It was denied on June 13, 2003. The Seventh Circuit denied Petitioner's appeal on July 18, 2005. See Wilson v. United States, 414 F.3d 829 (7th Cir. 2005), cert. denied, 546 U.S. 4428 (2006).
Once a defendant's sentence has been imposed, a court has limited authority to change it after the expiration of the limits set forth in Fed. R. Crim. P. 35. See United States v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004).
Federal Rule of Civil Procedure Rule 60(b) permits a party to seek relief from final judgment and request a reopening of his case for reasons of fraud, mistake, and newly discovered evidence. Fed. R. Civ. P. 60(b)(1)-(5). Rule 60(b)(6) permits a reopening of a case when the movant shows "any ... reason justifying relief from the operation of the judgment" other than those set out in Rules 60(b)(1)-(5). Any motion brought under Rule 60(b)(6) fitting the description of a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 shall be treated as a § 2255 motion, however. See U.S. v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007).
18 U.S.C. § 3582(c)(2) allows a court to reduce a previously imposed sentence when the 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)." Eligibility for a reduction under § 3582(c)(2) is triggered only by amendments designated for retroactive application in U.S.S.G. § 1B1.10(c). U.S.S.G. § 1B1.10 cmt. n. 1. In November 2007, the Sentencing Commission passed Amendment 706, which generally reduced by two levels the offense levels applicable to crack cocaine offenses. Effective March 3, 2008, Amendment 706 (as amended by Amendment 711) was added to the list of retroactively applicable amendments in § 1B1.10(c).
When reducing a sentence, a court must consider the factors set forth in 18 U.S.C. § 3553(a) and must ensure that any reduction "is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The guidelines further state that "[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2). To determine whether a defendant's applicable guideline range is lowered, "the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." U.S.S.G. § 1B1.10(b)(1).
I. Fed. R. Civ. P. 60(b)(6)
Petitioner has styled his motion as a "motion invoking federal rules of civil procedure rule 60(b)(6)." How a movant labels a post-judgment motion is immaterial, however; it is the substance of the motion that determines how it shall be treated. See Carraway, ...