Brown v. United States of America

Filing 37

ORDER denying 35 Motion Pursuant to Fed.R.Civ.P. 60(b), (5) and (6). Signed by U. S. District Judge Lawrence L. Piersol on 03/04/14. (Attachments: # 1 Doc. 2070 from CR07-40055, # 2 Doc. 2072 from CR07-40055, # 3 Doc. 2076 from CR07-40055) (CMS)

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Case 4:07-cr-40055-LLP Document 2076 Ftled 021i411,4 Page 1- of 2 PagelD #: 9646 FTT,ED FEB I t 201+ couRr DAKoTA uNITED srArES DrsrRJCr DrsTRrcr oF souTH * ¡¡ ¡s ¡r * * * *:|,F ¡r. ¡ß * ¡r. **-- -:?YT*ITIP-ty:iï * * UNITED STATES OF AMEzuCA, **r ¡r ¡r * ¡f xlOI * I -;HH- cR 07-40055-26 ¡¡ * * ORDER DENYING _vs_ * MOTTON TO AMEND * * TYLER BROWN, * * Defendant. * * * * * * *'¡ * * * ¡È ¡$ ¡F :¡ * ¡i * ¡f * * * * * * * * * * * * * *,t * * * * * :r * * * * * * * * * * * * Plaintifi, Defendant Tyler Brown filed a motion to ame,nd (Doc. 2075), asking the Court to reconsider its denial of his motion for a reduced sente,nce pursuant to Federal Rule of Civil Procedure 60(b). In his Rule 60(b) motion, Defendant asked the Court to apply the Fair Sentencing Act retroactively and reduce his sentence from 120 months to ó0 montþ which is the Fair Sentencing Act'snewmandatoryminimumfortheamountofdrugsattributedtoDefendant. IndenyingtheRule 60(b) motion, the Court explained that the more lenient penalties in the Fair Sentencing Act apply only to those offenders whose crimes occurred before the effective date ofthe Act (August 3,2010), but who were se,lrtenced after that date. See Dorsey v. United States, 732 S.Ct. 2321 ,2331 (2012). Because Defendant was sente,nced on April 2,zDlD,before the Fair Se,lrtørcing Act became effeclive, the Fair Sentencing Act does not apply to him. Defendant cites United States v. Booker,543 U.S. 220 (2005), for the proposition that a change in law will be given effect to cases that are on direct review, and he argues that he is entitled to retroactive application of the Fair Sentencing Act because his case was on direct appeal when the Act became effective. By its very terms, however, Boolær makes its new rule (that the sentencing guidelines a¡e not mandatory) applicable 'to all cases on direct review." hand, Congress did not address retroactivity when Id. ar.268. On the other it enacted the Fair Sentencing Act. The retroactivity of the Fair Sentencing Act was finally decided by the Supreme Court m Dorsey and, . Ca¡e 4:07-cr-40055-LLP Document 2076 Flled 021t411,4 Page 2 of 2 PagetD #:9647 Dorseymakes it clea¡ that the Fair Sentencing Act does not appþ to Defendant. Thus, the Court is prohibited frrom giving Defendant the reliefhe seeks. Accordingly, IT IS ORDERED that Defendant Tyler Brown's Motion to Amend Rule 60(b) (Docket 2075) is denied. Dated this l4th day of February,Z0l4. BY THE COURT: United States District Judge ATTEST: JOSEPH HAAS, BY: DEPUTY

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