Memorandum & Order — United States v. Jade Wilson (Southern District of Illinois, Document 110)

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Memorandum and order in United States v. Jade Wilson, Case No. 01-cr-40007-1-DRH, in the United States District Court for the Southern District of Illinois, Document 110, filed January 8, 2010. The Court states that the defendant is serving a 240-month term of imprisonment imposed on December 3, 2001 and filed a pro se Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offenses (Doc. 100), and that appointed counsel moved to withdraw (Doc. 106). It finds that the guideline range was based on a 240-month statutory minimum, that Amendments 706 and 711 did not lower it, and that it lacks subject matter jurisdiction over the reduction request. It grants the motion to withdraw and dismisses the pro se motion for lack of jurisdiction.

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Case 4:01-cr-40007-JPG      Document 110 Filed 01/08/10       Page 1 of 4   Page ID
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                    IN THE UNITED STATES DISTRICT COURT
                   FOR THE SOUTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

      Plaintiff,

v.

JADE WILSON,

      Defendant.                                     Case No. 01-cr-40007-1-DRH


                            MEMORANDUM & ORDER

HERNDON, Chief Judge:

             Defendant Jade Wilson is serving a 240-month term of imprisonment

which was imposed by this Court on December 3, 2001 (see Docs. 64 & 72). This

term consists of 240 months on Counts 1, 2, 3, and 4, all to run concurrent with one

another. On March 17, 2008, acting pro se, Defendant filed a Motion for Retroactive

Application of Sentencing Guidelines to Crack Cocaine Offenses Pursuant to 18

U.S.C. § 3582 (Doc. 100), along with a Motion for Leave to Proceed In Forma

Pauperis (Doc. 101). The Court appointed the Office of the Federal Public Defender

(“FPD”) for the Southern District of Illinois as representative counsel for Defendant

regarding the issue of a sentencing reduction in light of the amendments to the

United States Sentencing Guidelines (“USSG”) (Doc. 102), and counsel has filed a

Motion to Withdraw (Doc. 106) on the basis that he can make no non-frivolous

arguments in support of a reduction pursuant to 18 U.S.C. § 3582(c). See Anders



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v. California, 386 U.S. 738, 744 (1967). Defendant did not respond to the Motion

to Withdraw, even though given an opportunity to do so (see Doc. 108).

             Section 3582(c)(2) allows the Court to reduce a defendant’s previously

imposed sentence 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).” In doing so, the 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).      Thus, a defendant urging a sentence

reduction under § 3582(c)(2) must satisfy two criteria:         (1) the Sentencing

Commission must have lowered the applicable guideline sentencing range, and (2)

the reduction must be consistent with applicable policy statements issued by the

Sentencing Commission. If the defendant cannot satisfy the first criterion, the Court

has no subject matter jurisdiction to consider the reduction request. United States

v. Lawrence, 535 F.3d 631, 637-38 (7th Cir. 2008); see United States v.

Forman, 553 F.3d 585, 588 (7th Cir. 2009), cert. denied Forman v. United

States, 129 S. Ct. 2817 (2009).

             Defendant cannot satisfy the first criterion because she was not

“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).” 18 U.S.C. § 3582(c)(2). Amendments 706 and 711 amended U.S.S.G. §


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2D1.1(c) as of November 1, 2007, to lower by two points the base offense levels

associated with various amounts of crack cocaine. The Sentencing Commission

amended U.S.S.G. § 2D1.1(c) intending to alter the disparity in sentences involving

crack cocaine and sentences involving powder cocaine. The amendments did not,

however, reduce the sentencing range of defendants whose minimum guideline

sentence was determined under U.S.S.G. § 5G1.1(b) based on a statutory minimum

rather than under U.S.S.G. § 2D1.1 based on relevant conduct amounts.           See

Forman, 553 F.3d at 588 (“Nothing in § 3582(c)(2) permits a court to reduce

a sentence below the mandatory minimum.”).

             Defendant’s sentencing guideline range was based on a 240-month

statutory minimum. Because her sentence was based on a statutory minimum

sentence in accordance with U.S.S.G. § 5G1.1(b), not her base offense level set forth

in U.S.S.G. § 2D1.1, the amendments did not lower the guideline range, and thus,

she cannot satisfy the first criterion under 18 U.S.C. § 3582(c)(2) for obtaining a

sentence reduction. The Court lacks subject matter jurisdiction to consider her

reduction request. See Forman, 553 F.3d at 588; Lawrence, 535 F.3d at 637-

38.

             The Court therefore GRANTS counsel’s Motion to Withdraw (Doc. 106),

DISMISSES Defendant’s pro se Motion for Sentence Reduction (Doc. 100) for lack

of jurisdiction and FINDS AS MOOT Defendant’s Motion for Leave to Proceed In

Forma Pauperis (Doc. 101). The Clerk is DIRECTED to mail a copy of this order to



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Defendant Jade Wilson, #05283-025, FCI Waseca, Federal Correctional Institution,

P.O. Box 1731, Waseca, MN 56093.

            IT IS SO ORDERED.

            Signed this 8th day of January, 2010.



                                            /s/ DavidRHerndon
                                           Chief Judge
                                           United States District Court




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