Lawrence v. USA

Filing 4

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that petitioner shall be granted thirty (30) days from the date of this Memorandum and Order either to withdraw the instant motion to reduce or modify sentence or to consent to the Court's reclassifica tion of the motion as one brought pursuant 28 U.S.C. § 2255. Movant shall advise the Court of her choice, in writing. IT IS FURTHER ORDERED that of movant decides to pursue this action under 28 U.S.C. § 2255, she shall file an amended motio n to vacate on a courtprovided form within thirty (30) days of the date of this Memorandum Order. IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy of the Court's form Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Response to Court due by 2/1/2013.. Signed by District Judge Catherine D. Perry on 1/2/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARY KATHERN LAWRENCE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:12CV211 CDP

MEMORANDUM AND ORDER
Movant’s correspondence to the undersigned is before the Court in which
she seeks a reduction and/or modification of her criminal sentence. The Court has
construed movant’s correspondence as a motion and it is now properly before the
Court.
Movant is an inmate at the Greenville Federal Prison Camp in Greenville,
Illinois. For the reasons set forth below, the Court will grant movant thirty (30)
days from the date of this Memorandum and Order either to withdraw the instant
motion, or to consent to the Court’s reclassification of the motion as one brought
under 28 U.S.C. § 2255.
Background
On August 14, 2006, movant pleaded to a violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(A)(viii) and 846, conspiracy to distribute 50 grams or more of

methamphetamine and possession with intent to distribute 500 grams or more of
methamphetamine. On November 21, 2006, movant was sentenced to 108
months’ imprisonment on each of two counts, to be served concurrently, and three
years of supervised release. See U.S. v. Lawrence, 1:06CR89 CDP (E.D. Mo.).
Movant failed to appeal her conviction.
On November 23, 2007, movant filed a motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255. On November 9, 2009, the Court
denied movant’s motion to vacate. See Lawrence v. U.S., 1:07CV170 CDP (E.D.
Mo.).
On February 15, 2012, movant filed a motion for “departure from the
sentencing guidelines” in her criminal case, seeking a reduction in her criminal
sentence. The Court denied her request on July 3, 2012, noting that it had “no
jurisdiction or authority to reduce her sentence at this time.”
Motion to Reduce or Modify Sentence
In her motion to reduce or modify her sentence currently before the Court,
movant again seeks a reduction or modification of her sentence based on postoffense rehabilitation, or any other reductions that could apply to the current
amendments to the United States Sentencing Guidelines. Once again, the Court
must find that it lacks authority to order the government to file a Rule 35 motion,
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and the “downward departure” she seeks is only something that could have been
considered at sentencing, not six years later. The Court simply has no authority to
grant movant the relief she seeks. Thus, movant’s motion is subject to dismissal.
However, as movant is also seeking a “sentence modification” in addition to
a “sentence reduction,” the Court will allow movant an opportunity to reclassify
her petition as one brought under 28 U.S.C. § 2255 if she so chooses. See Morales
v. United States, 304 F.3d 764, 765 (8th Cir. 2002). As movant has already filed a
§ 2255 motion regarding her conviction, the Court warns movant that reclassifying
her petition could result in a dismissal of her petition as second or successive.1 Cf.
Morales, 304 F.3d at 765. Consequently, before reclassifying the instant action as
a § 2255 motion, the Court will offer movant an opportunity either to withdraw
her motion or to consent to the Court’s reclassification of the motion as a motion
to vacate brought under 28 U.S.C. § 2255.
In accordance with the foregoing,

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Title 28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application." Section 101 of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(enacted on April 24, 1996), amended 28 U.S.C. § 2244 by adding a one-year
limitation period to petitions for writs of habeas corpus.
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IT IS HEREBY ORDERED that petitioner shall be granted thirty (30)
days from the date of this Memorandum and Order either to withdraw the instant
motion to reduce or modify sentence or to consent to the Court’s reclassification
of the motion as one brought pursuant 28 U.S.C. § 2255. Movant shall advise the
Court of her choice, in writing.
IT IS FURTHER ORDERED that of movant decides to pursue this action
under 28 U.S.C. § 2255, she shall file an amended motion to vacate on a courtprovided form within thirty (30) days of the date of this Memorandum Order.
IT IS FURTHER ORDERED that the Clerk shall mail to movant a copy of
the Court’s form Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence.
Dated this 2nd day of January, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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