United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER is before the Court on the Petition to Reconsider
Petitioner's Sentence in Pursuant to Title 18 U.S.C.
§ 2553(a)(6) and in Light of the New Fast Track Program
and the Second Chance Act in Pursuant to Title 18 U.S.C.
§ 3621(a) In Conjunction With Title 18 U.S.C. §
3624(c)(1)(2)(3)(4)(5) filed by Petitioner Bryan Marinelarena
on December 9, 2016 (the "Petition"). (CV Doc. 1;
CR Doc. 54). The Court lacks jurisdiction to consider
Marinelarena's request and will dismiss the Petition.
Also before the Court are Marinelarena's Application to
Proceed in District Court Without Prepaying Fees or Costs (CV
Doc. 5) and Motion for Appoiment (sic) of Counsel Pursuant to
Title 18 U.S.C. § 3006A (CV Doc. 6). The Court will
grant the Application to Proceed and deny Marinelarena's
Motion for appointment of counsel as moot.
was charged with manufacture, distribution, or possession
with intent to manufacture, distribute or dispense a
controlled substance, namely 6.6 kilograms of heroin. (CR
Doc. 1). Marinelarena pled guilty to conspiracy to possess
with intent to distribute more than 1 kilogram of a mixture
or substance containing a detectable amount of heroin
contrary to 18 U.S.C. §§ 841(a)(1) and (b)(1)(A).
(CRDoc. 42, 50). In his Amended Plea Agreement, he stipulated
that he understood the Court could impose a sentence of 10
years to life. (CR Doc. 50 at 2). He also stipulated that a
sentence of 54 months was the appropriate sentence, taking
into account his acceptance of responsibility, and that no
further reductions should be allowed. (CR Doc. 50 at 4). At
his sentencing hearing, the Court rejected the Amended Plea
Agreement and, over the objection of the United States,
varied downward to a sentence of 36 months. The Court entered
Judgment on February 24, 2016, sentencing Marinelarena to 36
months of imprisonment followed by 5 years of unsupervised
release, and recommending commencement of removal
proceedings. (CR Doc. 49).
Petition was filed on December 9, 2016. In his Petition,
Marinelarena asks the Court to reconsider the sentence on the
grounds that "this Court 'would/could' have give
the petitioner a lenient sentence." Marinelarena asks
the Court to shorten his sentence under 18 U.S.C. §
2553(a)(6) and 18 U.S.C. §§ 3621(a) and 3624(c)(2).
(CV Doc. 1 at 4; CR Doc. 54 at 4). Because Marinelarena
challenges the length or duration of his present physical
custody, the Court construes Marinelarena's Petition as a
request for habeas corpus relief under 28 U.S.C. § 2241.
See Palma-Salazar v. Davis, 677 F.3d 1031, 1035
extent Marinelarena is asking this Court to reconsider and
impose a shorter sentence under 18 U.S.C. § 2553(a)(6),
a federal court lacks inherent authority to modify a
previously-imposed sentence. A district court is authorized
to modify a Defendant's sentence only in specified
instances where Congress has expressly granted the court
jurisdiction to do so. United States v. Green, 405
F.3d 1180, 1184 (10th Cir.2005). A motion for sentence
modification that is not a direct appeal or collateral attack
under 28 U.S.C. § 2255 depends entirely on authority
granted by 18 U.S.C. § 3582(c). United States v.
Smartt, 129 F.3d 539, 540 (10th Cir. 1997).
3582(c) authorizes courts to modify a sentence of
imprisonment under three circumstances: (1) when the director
of the Bureau of Prisons (BOP) moves to reduce the sentence
for reasons enumerated in 18 U.S.C. § 3582(c)(1)(A); (2)
when modification is permitted under Fed. R. Crim. P. 35 and
18 U.S.C. § 3582(c)(1)(B) to promptly correct a clear
error or to reduce the sentence for substantial assistance;
and (3) when the Sentencing Commission has reduced the
applicable guidelines range after the defendant was sentenced
pursuant to 18 U.S.C. § 3582(c)(2). United States v.
Jones, 515 Fed.App'x 783, 784 (10th Cir.2013). The
BOP has not moved to reduce Marinelarena's sentence and
he has not identified any post-sentencing reduction of the
applicable guidelines range. Nor does Rule 35 authorize the
reconsideration of his sentence that he seeks. There is no
indication of clear error on the record and the government
has not moved for a reduction based on substantial
assistance. See Fed. R. Crim. P. 35(a) and (b). The
Court lacks jurisdiction because none of the circumstances
enumerated by section 3582 exist in Marinelarena's case.
18 U.S.C. §§ 3621(a) and 3624(c)(2) govern the
duration and conditions of Marinelarena's imprisonment by
the BOP. To the extent Marinelarena seeks habeas relief under
those statutes, he may only proceed against his immediate
physical custodian in the District of his incarceration.
Rumsfeld v. Padilla, 452 U.S. 426, 442-43 (2004).
Although Marinelarena was sentenced in this Court, his
Petition indicates that he is incarcerated at the Reeves
County Detention Center I & II in Pecos, Texas, not in
New Mexico. (CV Doc. 1 at 1; CR Doc. 54 at 1). Therefore,
this Court lacks jurisdiction to grant him relief on his
habeas corpus claims under §§ 3621(a) and
Petitioner Bryan Marinelarena's Application to Proceed in
District Court Without Prepaying Fees and Costs (CV Doc. 5)
Motion for Appointment of Counsel Pursuant to Title 18 U.S.C.
§ 3006(a) (CV Doc. 6) is DENIED as moot in light of the
dismissal of this proceeding; and
Petition to Reconsider Petitioner's Sentence in Pursuant
to Title 18 U.S.C. § 2553(a)(6) and in Light of the New
Fast Track Program and the Second Chance Act in Pursuant to
Title 18 U.S.C. § 3621(a) In Conjunction With Title 18
U.S.C. § 3624(c)(1)(2)(3)(4)(5) filed by Petitioner
Bryan Marinelarena on December 9, 2016 ...