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United States v. Russell

April 6, 2009

RE: MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO RULE 59(E) (09/10/2008),
UNITED STATES
v.
ROGER RUSSELL,



The opinion of the court was delivered by: William H. Walls United States District Judge

Chambers of William H. Walls Senior District Judge

(973) 645-2564 (973) 645-3436 Fax

Martin Luther King Jr. Federal Courthouse 50 Walnut Street Newark, New Jersey 07102

NOT FOR PUBLICATION

LETTER ORDER

ORIGINAL ON FILE WITH CLERK OF COURT

Dear Mr. Russell:

You have filed a pro se motion for modification of your sentence as a result of alleged plain error in the calculation of the career offender status in your pre-sentence report (PSR). In your motion you have also asked this Court to reconsider your earlier motion to modify your sentence under 18 U.S. C. § 2582(c)(2). For the following reasons, your motion is denied.

Sentencing History

You pled guilty on September 11, 2002 to one count of conspiracy to distribute and possess more than 100 grams of heroin "[f]rom at least in or about December, 2000 through in or about February, 2002". Information at pg. 1 (August 19, 2002). You were sentenced on December 12, 2003 to 150 months imprisonment and four years supervised release.

Amendment Under 18 U.S. C. § 2582(c)(2)

In your previous motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense of March 5th, 2008, you sought to modify and reduce your sentence pursuant to 18 U.S.C. § 3582 (c)(2), which allows for modification if the applicable sentencing guideline has been amended by the Sentencing Commission. You argued that your sentence should be reduced because the United States Sentencing Guideline ("U.S.S.G.") relating to the computing of prior criminal history, U.S.S.G. § 4A1.2 (a), was amended by Amendment 709 (effective November 1, 2007). This Court denied your motion on the basis that Amendment 709 did not meet the requirements for retroactive application set out in U.S.S.G. § 1B1.10(c). See Letter Order denying Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense, June 18, 2008.

In your current motion you again seek modification of your sentence as a result of Amendment 709 by arguing that it can be applied retroactively as a clarifying amendment under U.S.S.G § 1B1.11(B)(2), which provides:

The Guidelines Manual in effect on a particular date shall be applied in its entirety... [I]f a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such ...


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