United States v. Stewart

2004 | Cited 0 times | D. Maine | October 5, 2004

ORDER ON DEFENDANT'S MOTIONS

The motion to proceed in forma pauperis is GRANTED . The motion to appoint counsel is DENIED . The issues are straightforward and require no legal assistance.

The motion to reduce or correct sentence is DENIED . First, the court has no authority to grant the motion under either Fed. R. Crim. P. 35 or 18 U.S.C. § 3582. Second, there was no error in the sentence. The defendant did have notice of the proposed upward departure under United States Sentencing Guideline 4A1.3. Notice of the possibility of such a departure was given in the Presentence Report ¶ 51. Indeed, the sentencing memorandum filed by the defendant's lawyer days before the hearing addressed the possibility of upward departure and objected to it, thus demonstrating that notice had been given. Third, this sentence was imposed on March 22, 2004, well before Blakely v. Washington, 124 S. Ct. 2531 (2004). No court has held that Blakely applies retroactively to sentences previously imposed.

SO ORDERED.

DATED THIS 5TH DAY OF OCTOBER, 2004.

D. BROCK HORNBY UNITED STATES DISTRICT JUDGE

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