United States District Court, D. Colorado
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
AND DENYING MOTION FOR RECONSIDERATION 18
U.S.C. § 3742(e), POST SENTENCING REHABILITATION
William J. Martinez United States District Judge.
matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (ECF No. 184) and Motion for
Reconsideration 18 U.S.C. § 3742(e) Post Sentencing
Rehabilitation Programming (ECF No. 183) filed pro
se by the Defendant-Movant, Jennifer Jo Lewis, on
December 18, 2017. As directed by the Court, the
Plaintiff-Respondent (“Respondent”) has filed a
response to the motions (ECF No. 187) and Ms. Lewis has
utilized the opportunity provided by the Court to submit a
reply (ECF No. 189). Following a review of the pending
matters and pertinent materials contained within the record,
the Court denies the motions.
August 18, 2015, an Indictment was filed with this Court
against Ms. Lewis and a co-defendant. (ECF No. 1). Ms. Lewis
was charged in two counts of the Indictment:
1. Count 1, which alleged that on or about July 23, 2015, Ms.
Lewis and her co-defendant knowingly and intentionally
possessed with the intent to distribute more than 50 grams of
methamphetamine, a Schedule II controlled substance, in
violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(A)(viii). (Id. at 1).
2. Count 4, which alleged that on or about July 23, 2015, Ms.
Lewis, being an unlawful user of a controlled substance, as
defined in 18 U.S.C. § 802, did knowingly possess a
firearm and ammunition, in and affecting interstate commerce,
in violation of 18 U.S.C. § 922(g)(3). (Id. at
to a written plea agreement (ECF No. 76), on June 9, 2016,
Ms. Lewis pleaded guilty to Count 1 of the Indictment (ECF
No. 75). As part of the plea arrangement, the Government
agreed to file a motion to dismiss Count 4 of the Indictment.
(ECF No. 76 at 1). As noted in the Plea Agreement, the
maximum penalty range to which Ms. Lewis was subject for the
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii)
was 10 years to life imprisonment; no more than 10 million
dollar fine, or both; not more than five years supervised
release; $100 special assessment fee. (Id. at 3).
Presentence Investigation Report and Sentencing Statement
(“PSR”) for Ms. Lewis was ordered by the Court.
(ECF No. 75). The PSR was prepared and revised by the U.S.
Probation Office for the Court's reference at sentencing.
(ECF Nos. 118 and 119). Based on a total offense level of 31
and criminal history category of I, the PSR calculated the
Guidelines imprisonment range to be 108 months to 135 months.
(ECF No. 118 at 15). However, the statutorily authorized
minimum sentence pursuant to 21 U.S.C. § 841(a)(1) &
(b)(1)(A)(viii) is 10 years. Therefore, the Guideline range
for Ms. Lewis was 120 months to 135 months, with the PSR
recommending the minimum period of imprisonment allowed by
statute as 120 months. (ECF 118-1 at 2). By motion, Ms. Lewis
requested the Court impose a below-statutory guideline
sentence of 48-months pursuant to 18 U.S.C. § 3553(a).
(ECF No. 115).
Lewis was sentenced on November 30, 2016. Considering all
relevant factors in the record before the Court, to include
Ms. Lewis' motion for a variant sentence which was
granted in part, a term of imprisonment of 56 months was
imposed. (ECF No. 134). The Judgment in a Criminal Case was
entered on December 5, 2016. (ECF No. 135). Ms. Lewis did not
file a direct appeal.
pro se, Ms. Lewis filed her Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“§ 2255 Motion”)
(ECF No. 184) and her Motion for Reconsideration 18 U.S.C.
§ 3742(e) Post Sentencing Rehabilitation Programming
(“Motion for Reconsideration”) (ECF No. 183) on
December 18, 2017.
Standard of Review
provisions of 28 U.S.C. § 2255 allow a prisoner in
federal custody to collaterally attack a federal sentence on
four grounds: (1) the sentence was imposed in violation of
the Constitution or laws of the United States; (2) the court
was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). A § 2255 motion is not a
substitute for a direct appeal. United States v.
Warner, 23 F.3d 287, 291 (10th Cir. 1994).
Court must construe the § 2255 Motion and Motion for
Reconsideration liberally because Ms. Lewis is not
represented by an attorney. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10thCir. 1991).
However, the court should not be an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110.
Ms. Lewis' Motion For Reconsideration
Lewis moves the Court for reconsideration of her sentence
pursuant to 18 U.S.C. § 3742(e) on the grounds that she
has been rehabilitated. (ECF No. 183). She asserts she is
entitled to relief under Pepper v. United States,
562 U.S. 476 (2011). Upon review of the authorities cited by
Ms. Lewis, the Court finds that such relief is not available.
provisions of 18 U.S.C. § 3742(e) establish the factors
to be considered in the limited review of a sentence by
courts of appeals, but does not expand the authority of the
district courts to review sentences. See 18 U.S.C.
§ 3742(e) (“Upon review of the record, the
court of appeals shall determine . . .”) (emphasis
added). Ms. Lewis cites the Supreme Court's opinion in
Pepper v. United States, ostensibly arguing she
“could be considered for a reduction of sentence,
” because in Pepper a downward variance was
based on the Defendant's “lack of history of
violence and [ ] Post-Sentencing Rehabilitation.” (ECF
No. 183). However, the case principally relied on by Ms.
Lewis is distinguishable from her case.
posture of the case in Pepper involved a district
court's resentencing of a defendant after the court of
appeals had reviewed the prior sentence and remanded the
matter to the district court. In that case, the Supreme Court
held that evidence of post-sentencing rehabilitation is
relevant and may support a downward variance “when a
defendant's sentence has been set aside on appeal and
[her] case remanded for resentencing.” Id.,
562 U.S. at 490-91. In this case, however, the United States
Court of Appeals for the Tenth Circuit has not reviewed Ms.
Lewis' sentence. Ms. Lewis is not before this Court on
remand for resentencing and therefore, this Court does not
have authority to revisit her sentence. The holding of
Pepper and the provisions of 18 U.S.C. § 3742
are inapplicable in this case.
construing the motion as a notice of appeal pursuant to Rule
4(b) of the Rules of Appellate Procedure, such a notice would
be untimely. Fed. R. App. P. 4. Ms. Lewis was sentenced on
November 30, 2016. Under Rule 4(b), a notice of appeal must
be filed within 14 days after the entry of the judgment for
the order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). As
previously indicated, the Judgment in a Criminal Case was
entered on December 5, 2016. (ECF No. ...