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United States of America v. John Beard

March 15, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN BEARD, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Thursday, 15 March, 2012 02:49:59 PM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Defendant John Beard's pro se Motion for Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(2) (d/e 143) (Motion). Beard has also filed a "Motion for Consideration for Reduction of Sentence (d/e 147) (Renewed Motion). The Court appointed counsel to represent Beard. On November 1, 2011, appointed counsel moved to withdraw because counsel saw no basis for a reduction in Beard's sentence. See d/e 144. The Court allowed counsel to withdraw and offered Beard the opportunity to explain why he was entitled to a reduction in his sentence. Text Order dated November 2, 2011. Beard responded with the Renewed Motion. For the reasons set forth below, Beard's Motions (d/e 143, 147) are DISMISSED for lack of subject-matter jurisdiction.

I. BACKGROUND

Following a November 2002 jury trial, Defendant Beard was convicted of Possession of 500 Grams of Cocaine With Intent to Distribute (Count I) and Possession of 5 Grams of Cocaine Base (Crack) With Intent to Distribute (Count II), in violation of 21 U.S.C. § 841(a)(1), and Carrying a Firearm During a Drug Trafficking Crime (Count III), in violation of 21 U.S.C. § 924(c)(1). On May 23, 2003, the Court sentenced Beard to 248 months' imprisonment. This term consisted of 188 months on each of counts 1 and 2 to run concurrently and 60 months on count 3 to run consecutively to counts 1 and 2.

On May 9, 2005, Beard filed a Motion to Vacate, Set Asside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Petition). On February 28, 2006, the Court allowed Beard's § 2255 Petition in part. The Court determined that the sentence imposed was subject to collateral attack because the sentence was based on an improperly overstated quantity of drugs. The Court ordered that Beard be resentenced.

The Fourth Revised Presentence Investigation Report (PSR) prepared for Beard's resentencing stated that Beard was accountable for 3,769.55 grams of cocaine and 16.4 grams of crack cocaine. PSR, ¶ 26. These amounts were converted into a marijuana equivalent of 1081.91 kilograms. Based upon the conversion, Beard had an offense level of 32. Beard's criminal history category was V. Based on an offense level of 32 and a criminal history category of V, the guideline range for counts 1 and 2 was 188 to 235 months. Furthermore, the minimum for count 3 was 60 months and was required to be consecutive to the term imposed on counts 1 and 2. Therefore, the PSR stated the sentencing range was 248 to 295 months. At sentencing, the Court adopted the findings of the PSR with respect to the determination of Beard's guideline range. See d/e 112-1. The Court sentenced Beard to 248 months' imprisonment.

In February 2008, Beard filed a Motion to Reduce Sentence (d/e 130) based on Amendment 706, which reduced the base offense level for most crack offenses, and Amendment 711, which modified the procedure for determining the combined base offense level in offenses involving a combination of crack and other controlled substances. The Government and the United States Probation Office agreed that Beard was eligible for a two-level reduction of his criminal offense level. A criminal history category of V and a new offense level of 30 yielded an amended sentencing guideline range of 151 to 188 months on counts 1 and 2. Because the sentence on count 3 was required to be consecutive to the sentence imposed on counts 1 and 2, the sentencing range was 211 to 248 months. The Court reduced Beard's sentence to 211 months.

In September 2011, Beard filed the instant Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 143). The Court appointed the Federal Public Defender to represent Beard in this matter. On November 1, 2011, the Federal Public Defender moved to withdraw after concluding Beard is ineligible for a reduction under Amendment 750. The Court granted the motion to withdraw and gave Beard time to file any supplement or new motion.

On March 12, 2012, Beard filed the Renewed Motion (d/e 147) in which he asserts he is entitled to a reduced sentence pursuant to the retroactive amendment to the crack cocaine guideline. Beard also argues issues related to the PSR's recitation of relevant conduct and the drug amounts for which Beard was held responsible. Specifically, Beard argues paragraphs 22 and 23 of the PSR should have been stricken, and, if they were stricken, the drug amounts he would be held responsible for would entitle him to a two-level reduction of his offense level after Amendment 750 and his new offense level would be 28.

II. ANALYSIS

"District courts have limited power to revisit sentences once they are imposed." United States v. Goode, 342 F.3d 741, 743 (7th Cir. 2003). Section § 3582(c)(2) of the United States Code allows a court to reduce a previously imposed sentence (1) where the defendant was sentenced "to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" and (2) "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). If the defendant cannot satisfy the first ...


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