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United States v. McKinney

United States District Court, Seventh Circuit

January 3, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
CHAMELTHELE McKINNEY, Defendant.

MEMORANDUM & ORDER

HERNDON, Chief Judge.

Before the Court is defendant Chamelthele McKinney’s December 23, 2013 pro se motion for downward departure and sentence modification (Doc. 212). On July 29, 2011, defendant pled guilty to Counts 1 (conspiracy to commit tax evasion), 10 (loan application fraud), and 11 (false statement), of the indictment entered against her. On December 21, 2011, this Court sentenced defendant to 37 months on each Counts 1, 10, and 11, to be served concurrently, and entered judgment reflecting the same. The Court staggered defendant’s sentence to that of her co-defendant and husband, John Quinn McKinney. Thus, her term was initially not set to begin until after her husband’s release from prison (Doc. 137). However, after defendant committed retail theft, this Court revoked defendant’s bond and ordered the immediate execution of her sentence, on January 3, 2013 (Doc. 209). Defendant did not appeal her criminal judgment.

Defendant now moves for a “downward departure and sentence modification.” Defendant cites the Adjustments chapter of the Sentencing Guidelines, specifically § 3E1.1, Acceptance of Responsibility. See U.S.S.G. § 3E1.1. In reliance on Application Note 1(G), post-offense rehabilitative efforts, defendant states her participation in a drug program and general efforts at rehabilitation warrant this Court’s imposition of a reduced sentence.

Once a district court enters final judgment it lacks jurisdiction to continue to hear related issues, except to the extent authorized by statute or rule. See Carlisle v. United States, 517 U.S. 416 (1996). Defendant effectively seeks a resentencing in reliance on 18 U.S.C. § 3582. Section 3582 provides in pertinent part,

(b) Effect of finality of judgment.--Notwithstanding the fact that a sentence to imprisonment can subsequently be--
(1) modified pursuant to the provisions of subsection (c);
(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or
(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742;
a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.
(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--
(1) in any case--
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and ...

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