United States District Court, W.D. North Carolina, Asheville Division
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Defendant's "Petition... for Resentencing under 18 U.S.C. § 3582(c)(2)... Request for Appointment of Counsel... and Request for Hearing on Motion" [Doc. 161].
In his motion, the Defendant moves pursuant to 18 U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 433 of the United States Sentencing Guidelines. Amendment 433, however, became effective on November 1, 1991 - nearly ten years before the Defendant was sentenced. Section 3582 allows the Court to modify a sentence based on a sentencing range that was "subsequently" lowered. 18 U.S.C. § 3582(c)(2) As Amendment 433 was already in effect by the time that the Defendant was sentenced, his request for relief under § 3582(c)(2) must be denied. See United States v. Fareed, No. Crim. 04-499, 2006 WL 624895, at *2 (D.N.J. Mar. 9, 2006).
Even if the Defendant could seek relief under § 3582(c)(2), he is not entitled to any reduction of his sentence based on Amendment 433. That Amendment amended U.S.S.G. § 4B1.2, which in pertinent part defines the term "crime of violence" for the purpose of U.S.S.G. § 4B1.1, the career offender guideline. Specifically, the Amendment added a sentence to the commentary of U.S.S.G. § 4B1.2 stating that "[t]he term crime of violence' does not include the offense of unlawful possession of a firearm by a felon." See Stinson v. United States, 508 U.S. 36, 39 (1993) (quoting U.S.S.G. App'x C, p. 253 (Nov. 1992)). Here, the Defendant was initially sentenced as a career offender, but the Fourth Circuit determined that this designation was in error because his instant conviction under 18 U.S.C. § 922(g) did not qualify as a "crime of violence" under § 4B1.1. United States v. Williams, 16 F.App'x 90, 93 (4th Cir. 2001). Accordingly, the Fourth Circuit remanded this matter for resentencing. Because the Defendant already has received the benefit of Amendment 433, his motion must be denied.
IT IS, THEREFORE, ORDERED that the Defendant's motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) [Doc. 161] is DENIED.
IT IS FURTHER ORDERED that the Defendant's request for the appointment of counsel and for a hearing ...