Welch v. USA

Filing 2

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that this case is administratively terminated and will not be considered a motion to vacate, brought pursuant to 28 U.S.C. § 2255. IT IS FURTHER ORDERED that a copy of movants motion shall be tra nsferred to his criminal case, United States v. Welch, No. 4:15-CR-229 HEA, and filed as a motion for reduction in sentence, brought pursuant to Rule 35 of the Rules of Criminal Procedure and/or a § 3582motion. The government shall respond to movants motion in a reasonable time, as set forth in the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Henry Edward Autrey on 10/3/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD L. WELCH,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 4:16CV1356 HEA

OPINION, MEMORANDUM AND ORDER
Before the Court is movant Richard L. Welch’s motion to vacate, set aside or correct
sentence, brought pursuant to 28 U.S.C. § 2255. Based on the reasoning set forth below, the
Court will interpret movant’s motion as one for a reduction in sentence and transfer his motion to
his criminal case for full briefing.
Background
On January 28, 2016, movant pled guilty before this Court to the offense of conspiracy to
distribute heroin. See United States v.Welch, No. 4:15-CR-229 HEA (E.D.Mo. 2015). On June
8, 2016, this Court sentenced movant to the Bureau of Prisons for a term of imprisonment of 60
months. Id. Movant did not appeal his conviction and sentence.
Discussion
Movant filed the instant motion on August 19, 2016. In his motion, movant requests that
the Court apply a new amendment to the United States Sentencing Guidelines, referred to as the

“Mitigating Role Amendment,” or Amendment 794, which amended the commentary to
U.S.S.G. § 3B1.2. 1
In essence, movant is seeking a sentence reduction through a clarifying amendment to the
sentencing guidelines. The only existing authority for the Court to modify movant’s sentence
comes from Rule 35 of the Federal Rules of Criminal Procedure, or 18 U.S.C. § 3582, which is
more properly sought through a motion in reduction in sentence in movant’s criminal case.
Therefore, the Court will administratively terminate the instant action and it will not be counted
as a motion to vacate, brought pursuant to 28 U.S.C. § 2255. 2

Movant’s motion will be

interpreted as a motion for reduction in sentence, pursuant to Rule 35 of the Rules of Criminal
Procedure and transferred to his criminal action.
Accordingly,
IT IS HEREBY ORDERED that this case is administratively terminated and will not
be considered a motion to vacate, brought pursuant to 28 U.S.C. § 2255.
IT IS FURTHER ORDERED that a copy of movant’s motion shall be transferred to his
criminal case, United States v. Welch, No. 4:15-CR-229 HEA, and filed as a motion for reduction
in sentence, brought pursuant to Rule 35 of the Rules of Criminal Procedure and/or a § 3582
motion. The government shall respond to movant’s motion in a reasonable time, as set forth in
the Federal Rules of Civil Procedure.

1

The commentary to Sentencing Guidelines was amended on November 1, 2015, prior to
movant’s sentencing.
2
Movant has one year from the date of his criminal judgment to file his motion to vacate,
pursuant to 28 U.S.C. § 2255.

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IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 3rd day of October, 2016.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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