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Haleem Outing v. United States of America

March 1, 2011

HALEEM OUTING,
PETITIONER,
v.
UNITED STATES OF AMERICA
RESPONDENT.



The opinion of the court was delivered by: Faith S. Hochberg Hon. Faith S. Hochberg, U.S.D.J.

NOT FOR PUBLICATION CLOSED

OPINION & ORDER

Petitioner Haleem Outing submitted two motions for reduction of his sentence, pursuant to 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(1)(A). The motions were filed under civil docket number 10-4067 and criminal docket number 04-798 respectively. After carefully reviewing the submissions of the parties, the Court denies both motions.

I. Factual and Procedural History

On or about March 23, 2005, Mr. Outing entered into a plea agreement with the United States Attorney's Office for the District of New Jersey. Pursuant to this agreement, on March 29, 2005, Mr. Outing pled guilty to Count One of a Superseding Indictment charging him with conspiracy to possess with intent to distribute heroin, contrary to 21 U.S.C. §§ 841(a) and (b)(1)(c), in violation of 21 U.S.C. § 846.

On July 27, 2005, Mr. Outing was sentenced to 120 months imprisonment and 3 years probation. Almost one year later, on June 26, 2006, Mr. Outing moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). That motion was denied on February 26, 2008, because Mr. Outing's original sentence complied with United States v. Booker, 543 U.S. 220 (2005), and the Sentencing Commission had not altered the Guidelines range as required by § 3582(c)(2).

On August 9, 2010, Mr. Outing filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. On November 5, 2010, Mr. Outing filed a second petition pursuant to 18 U.S.C. § 3582(c)(1)(A). Mr. Outing filed both petitions appearing pro se.

II. Discussion

Mr. Outing argues that his sentence should be reduced as a result of the extensive rehabilitation he has undergone while incarcerated. Mr. Outing argues that post-sentencing rehabilitation is a valid basis for a downward departure from the calculated guidelines range. Mr. Outing claims he is eligible for a sentence reduction under both 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 2255.

A district court may modify a valid sentence only if a federal statute confers the court authority to do so. Carter v. Southerland, No. 09-4919, 2010 WL 1325659 at *2 (D.N.J. Mar. 31, 2010). According to the Sentencing Reform Act, a sentencing court may only modify a valid sentence in limited circumstances. Id. Specifically, 18 U.S.C. § 3582(c)(1)(A) states that a court may not modify a sentence once imposed except that in any case the court, "upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment" after making certain findings. 18 U.S.C. § 3582(c)(1)(A) (emphasis added).

28 U.S.C. § 2255 states that a prisoner in custody under a federal court sentence may move to have the sentencing court "vacate, set aside, or correct the sentence" under certain circumstances. 28 U.S.C. § 2255(a). As set forth below, neither claim Mr. Outing brings is meritorious. Mr. Outing has failed to show he is eligible for a reduction or a downward departure in sentencing under either of the federal statutes. The court evaluates each of Mr. Outing's claims in turn.

A. The 18 U.S.C. § 3582(c)(1)(A) claim

Mr. Outing argues that he should be granted a downward departure under 18 U.S.C. § 3582(c)(1)(A). It appears that Mr. Outing relies on the language in 18 U.S.C. § 3582(c)(1)(A)(i), allowing a court to modify a sentence if "extraordinary and compelling reasons warrant such a reduction." However, a District Court cannot grant a petitioner's request for modification of a sentence under this provision unless the Director of the Bureau of Prisons files a motion seeking such relief. Carter, 2010 WL 1325659 at *3; United States v. Hudson, 44 Fed.Appx. 457, 458 (10th Cir. 2002) ("[the statute] requires that the Director of the Bureau of Prisons make such a motion, not the prisoner."). ...


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