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United States of America v. Brian Keith Davis

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 26, 2011

UNITED STATES OF AMERICA PLAINTIFF,
v.
BRIAN KEITH DAVIS DEFENDANT.

The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER

RE: Defendant Brian Keith Davis' Motion to Modify Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2) [309]

The Court is in receipt of Defendant Brian Keith Davis' Motion to Modify Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2), filed on November 01, 2010 [309] and the Government's Opposition filed on December 13, 2010 [311]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:

Defendant's Motion to Modify Term of Imprisonment is DENIED. The Court finds that the Defendant's reliance on United States v. Booker is misplaced as Booker has no applicability to sentencing modifications sought pursuant to 18 U.S.C. § 3582 (c)(2). 543 U.S. 220 (2005).

Relying on Booker, the Defendant contends that the Court may apply retroactively 18 U.S.C. 3582(c)(2) to reduce his current 210 month sentence to 110 months. However, in Dillon v. United States, 130 S.Ct 2683, 2690-93 (2010), the Supreme Court has held that the Booker decision is inapplicable to § 3582(c)(2) proceedings. The Dillon Court concluded that the Commission's directives in § 1B1.10 foreclose a court acting under § 3582(c)(2) from reducing a sentence to a term that is less than the minimum of the amended guideline range. Id. at 2686. Since this Court on April 30, 2008 reduced Defendant's sentence to 210 months [308], which is the minimum sentencing range, Defendant's sentencing range has not been subsequently lowered by the Sentencing Commission.

Moreover, in United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005), the Ninth Circuit expressly held that the Booker decision is inapplicable to convictions that had become final before Booker's publication. Because Defendant's conviction became final in 1998 and the Booker decision was rendered in 2005, Booker cannot be applied retroactively to Defendant's conviction.

Accordingly, Defendant's Motion to Modify Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2) is DENIED.

IT IS SO ORDERED.

20110126

© 1992-2011 VersusLaw Inc.



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