United States District Court, E.D. Virginia, Norfolk Division
Rebecca Beach Smith CHIEF JUDGE.
matter comes before the court on the Petitioner's pro
se "Motion for Reduction in Sentence Under 18
U.S.C. §§ 3582(c) (2)/2255(3)"
("Motion"), filed on January 29, 2018. ECF No. 223.
November 15, 1993, a jury found the Petitioner guilty on
Counts One, Seventeen, Nineteen, and Twenty-One of the
Indictment, charging him with Conspiracy to Distribute and
Possess with Intent to Distribute Cocaine and Cocaine Base;
Distribution of Cocaine; and Possession of Cocaine with
Intent to Distribute, in violation of 21 U.S.C. §§
846, 841(a)(1). Doc. No. 183.On February 16, 1994, the court
sentenced the Petitioner to a term of life imprisonment on
Count One, two hundred and forty (240) months on Count
Seventeen, and four hundred and eighty (480) months on Counts
Nineteen and Twenty-One, all to run concurrently. Doc. No.
September 25, 2000, the Petitioner filed a motion under 28
U.S.C. § 2255, Doc. No. 424, which the court denied on
May 18, 2001. Doc. No. 438. Subsequently, the Petitioner
thrice filed a motion under 18 U.S.C. § 3582 to reduce
his sentence, and each one was denied. See ECF Nos.
22-23, 27, 83, 92, 98, 99. On a fourth motion under 18 U.S.C.
§ 3582 ("§ 3582 Motion")/ ECF No. 118,
the court reduced the Petitioner's sentence on Count One,
from a term of life imprisonment to four hundred and eighty
(480) months, with the sentences on Counts Seventeen,
Nineteen, and Twenty-One to remain unchanged. See
Order Regarding Mot. for Sentence- Reduction Pursuant to 18
U.S.C. § 3582(c)(2) (March 25, 2015) (w§
3582 Order"), ECF Nos. 156-57.
instant Motion appears to seek three forms of
relief.First, the Petitioner seeks to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
Mot. at 2. Next, the Petitioner seeks a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). Id. at 1-2.
Lastly, the Petitioner requests the court to appoint him
counsel. Id. at 12.
Relief Pursuant to 28 U.S.C. § 2255
Petitioner's Motion expressly requests relief pursuant to
28 U.S.C. § 2255(f)(1), id. at 2, and,
therefore, the Clerk is DIRECTED to assign a
new civil action number to the Petitioner's Motion.
However, as stated above, the Petitioner previously filed a
§ 2255 motion, which the court denied. Thus, the instant
Motion, to the extent that it seeks relief under § 2255,
is a successive § 2255 motion. Before this court may
consider any successive § 2255 motion, the
Petitioner must obtain an order from the Court of Appeals for
the Fourth Circuit. 28 U.S.C. § 2244(b)(3); see
Id. § 2255 (h) (noting that a petitioner must
comply with the provisions of 28 U.S.C. § 2244 when
filing a second or successive habeas petition).
Petitioner claims that the United States Supreme Court's
recent ruling in Nelson v. Colorado, 137 S.Ct. 1249
(2017), established a newly recognized constitutional right,
providing him with an avenue for relief under §
2255(f)(3). Mot. at 2. Even if Nelson applies,
Fourth Circuit is still required to certify a successive
§ 2255 motion containing a claim based on "a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable." 28 U.S.C. § 2255(h)(2). Accordingly,
the request for relief under 28 U.S.C. § 2255 is
DISMISSED for lack of authorization from the
Fourth Circuit. See id. § 2244(b)(3).
Relief Pursuant to 18 U.S.C. § 3582(c)(2)
Petitioner also requests the court to further reduce his
sentence to the low end of his Guidelines Range,
i.e., three hundred, and sixty (360) months. Mot. at
1. In support, the Petitioner points to the disparity in
sentencing, providing examples of other defendants who
received lesser sentences. Id. at 1-2, 9-12. The
court has already considered and granted the Petitioner's
fourth Motion for Reduction of Sentence under §
3582(c)(2), on March 25, 2015. See § 3582
Order. Therefore, this current Motion is, in reality, a
request for reconsideration of the § 3582 Order.
court fully considered the Petitioner's fourth §
3582 Motion in 2015, and exercised its discretion to reduce
his sentence on Count One from life imprisonment to four
hundred and eighty (480) months. See § 3582
Order. The court finds no reason to reconsider the §
3582 Order, as no new matters of merit or substance have been
raised in the current Motion that were not previously
considered by the court. In previously reducing the
Petitioner's sentence, the court fully considered the
factors set forth in 18 U.S.C. § 3553(a), along with the
Petitioner's medical records submitted to the court.
See 18 U.S.C. § 3582(c)(2); § 3582 Order
at 2. Further, the court likely lacks authority to reconsider
its 2015 § 3582 Order, more than two years after it was
filed. See United States v. Goodwyn, 596 F.3d 233,
235 (4th Cir. 2010). Once a defendant is sentenced, the court
should not reconsider his sentence "unless the Bureau of
Prisons moves for a reduction, the Sentencing Commission
amends the applicable Guidelines Range, or another statute or
Rule 3 5 expressly permits the court to do so."
Id. (emphasis in original) ("[T]here is no
'inherent authority' for a district court to modify a
sentence as it pleases." (quoting United States v.
Cunningham, 554 F.3d 703, 708 (7th Cir. 2009))). None of
these events has occurred since the court's £015
§ 3582 Order. Accordingly, the Petitioner's request
for reconsideration of the § 3582 Order is
DENIED, as is any request for a further
reduction of sentence under 18 U.S.C. § 3582(c) (2).