The opinion of the court was delivered by: Dickinson R. Debevoise U.S.S.D.J.
Petitioner, Mohammed Anwo, moves for a reduction in his 120 months sentence of imprisonment imposed on February 24, 2003. For the reasons set forth below the motion will be denied.
Petitioner was convicted of a violation of 18 U.S.C. § 922(g)(1) (unlawful possession of a firearm by a felon). At the time of sentencing the court determined that Petitioner's criminal history score was 23, which placed Petitioner in a criminal history category of 6. Petitioner's attorney did not object to this computation at the time. The total Guidelines computation resulted in Petitioner's sentence of 120 months.
The Petition cites for support 18 U.S.C. § 3582(c)(2) which governs sentencing modifications in instances where a defendant has been sentenced to a term of imprisonment based on a provision of the United States Sentencing Guidelines that has been subsequently reduced. Under such circumstances, where consistent with policy statements of the Sentencing Commission, such a defendant may under § 3582(c)(2) be entitled to a reduction in sentence and make an application to the court for such relief.
In this case Petitioner seeks such relief under Guidelines Amendment 709 which contains a number of amendments to the Guidelines and Commentary relating to the computation of a defendant's criminal history. Petitioner cites a number of them, but their application to his case is not readily apparent.
Petitioner raises one concrete objection. He lists (not in chronological order) eight (but not all) of the convictions listed in the Presentence Investigation Report that entered into his criminal history calculation: Para. 26 (3 points), Para. 28 (3 points), Para. 32 (3 points), Para. 37 (3 points), Para. 41 (3 points), Para. 30 (1 point), Para. 35 (1 point) and Para. 43 (2 points). Petitioner asserts "the United States Probation Officer has made an error in the calculation of my points. Number 41 and 43 are the same charges; therefore the United States Probation Officer has Double Counted my points due to the same charge for some apparent reason the Indictment has been recorded backwards; please see the above mentioned Number." (Petition at 5).
Petitioner asserts an error of double counting in determining his criminal history score. He does not rely upon a reduction in his Guidelines computation resulting from a provision of the Guideline that has been reduced subsequent to his sentencing. Consequently, § 3582(c)(2) has no application in this case, and Petitioner's reliance on it is misplaced. That being the case, dismissal of the motion without more is warranted.
Petitioner is time barred from presenting a motion pursuant to Fed. R. Crim. P. 35, which provides a seven day period within which a court may "correct a sentence that resulted from arithmetical, technical, or other clear error."
Even if Petitioner had articulated an effect that Amendment 709 would have on his sentence, the Amendment would not have retroactive effect: i) the Sentencing Commission has not expressly stated in U.S.S.G. § 1B1.10 that Amendment 709 should have retroactive application and ii) Petitioner has not even attempted to establish that the Amendment does not constitute a substantive change but merely clarifies the law in existence at the time of the sentencing. see United States v. Wood, 526 F.3d 82, 88 (3d Cir. 2008).
On the merits it does not appear that the Presentence Investigation Report double counted. The offense that was listed in Para. 41 of the Report reflects a June 30, 1997 arrest for a narcotics offense and a March 19, 1998 sentence of 3 years imprisonment. The offense that was listed in Para. 43 of the Report reflects an October 11, 1997 arrest for a narcotics offense and a July 12, 1999 sentence of 5 years probation with 364 days in the Essex County Jail. These are not related offenses.
Finally, even if the court had considered the offenses to be related and had reduced the criminal history score from 23 to 20, Petitioner's criminal history would have remained well above the 13 points ...