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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:88cr4019-WS

vs. Case No. 4:05cv180-WS/WCS

THEODORE HUDSON,

Defendant.

 /

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION

Defendant filed a motion titled "Amendment 484, and 487[,] Reasonable Doubt

and Advisory Challenge Memorandum of Law and Issue and Authorities to Support 18

U.S.C. § 3582(c), of U.S.S.G." Doc. 209. 

Defendant asserts that the Supreme Court has interpreted the Federal

Sentencing Guidelines, and clarifying amendments to the guidelines apply retroactively. 

Id., p. 2. Defendant asserts "[p]ursuant to Amendment 484 and 487 and the guideline[s]

being advisory," that the Government "never prove[d] beyond a reasonable doubt, that

the so-called crack cocaine was crack cocaine or cocaine base, or any other form

base." Id., pp. 2-3. He asserts that "this cocaine base could have been mixed with

[beeswax] or est [sic]," so pursuant to Amendment 484 the entire weight should not

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Case Nos. 4:88cr4019-WS and 4:05cv180-WS/WCS

have counted. Id., p. 5. He asserts that the substance could have been free base

cocaine, which is not cocaine base as clarified by Amendment 487 (explaining that

cocaine base means crack). Id., pp. 3-5. Defendant contends that, now that the

guidelines are advisory, the court does not have to apply the 100 to 1 crack to powder

sentencing ratio. Id., p. 7. 

Defendant also asserts that during his term of imprisonment he has learned that

he made a mistake, has suffered personal losses and health problems, and has been

productive in prison. Id., pp. 9-10. 

Section 3582(c)(2) authorizes the court, in its discretion, to modify a term of

imprisonment if the sentencing range has subsequently been lowered by the

Sentencing Commission, if "consistent with applicable policy statements issued by the

Sentencing Commission." "[O]nly amendments, clarifying or not, listed under

subsection (c) of 1B1.10, and that have the effect of lowering the sentencing range

upon which a sentence was based, may be considered for reduction of a sentence

under § 3582(c)(2)." United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003). 

This is "a bright-line rule that amendments claimed in § 3582(c) motions may be

retroactively applied solely where expressly listed under § 1B1.10(c)." Id. (collecting

cases from other circuits). 

Amendment 484 amended Application Note 1 to U.S.S.G. § 2D1.1, to explain

that materials which must be separated from a controlled substance before it can be

used should not be included in determining weight of the controlled substance for

sentencing. Examples given were "fiberglass in a cocaine/fiberglass bonded suitcase,

beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory."

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Case Nos. 4:88cr4019-WS and 4:05cv180-WS/WCS

"Amendment 484, which established the initial rule excluding unusable materials

from drug weight, is among the amendments listed in § 1B1.10(c)," and applies

retroactively. United States v. Carter, 110 F.3d 759, 761 (11th Cir. 1997) (cited in

Armstrong, 347 F.3d at 909). But there was no evidence in this case that the controlled

substances were combined with materials such as fiberglass or beeswax that must be

extracted from the mixture before the cocaine could be used. This case involved

dealing, cooking, and street sales of crack cocaine. PSR, ¶ ¶ 4-7 (offense conduct) and

12 (base offense level). Defendant's sentencing range has not "subsequently been

lowered" as a result of this amendment, which hash no application to the facts of his

case. Thus, Defendant is not entitled to relief under § 3582(c)(2). 

Amendment 487 is not a clarifying amendment, and does not apply retroactively

under § 1B1.10. United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994), cert.

denied, 514 U.S. 1090 (1995). 

Defendant's claim that the Supreme Court made a "clarifying amendment" when

it determined that the Guidelines are advisory is based on United States v. Booker, 543

U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See also Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). "The holding in Booker is that the

Sixth Amendment right to trial by jury is violated where under a mandatory guidelines

system a sentence is increased because of an enhancement based on facts found by

the judge that were neither admitted by the defendant nor found by the jury." United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, S.Ct. ,

2005 WL 483174 (June 20, 2005); United States v. Burge, 407 F.3d 1183, 1191 (11th

Cir. 2005) (quoting Rodriguez with original emphasis). 

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1

 Even accepting that the Booker opinion could qualify as a clarifying amendment

to the guidelines, clarifying amendments apply retroactively on direct appeal or by

motion to vacate sentence under 28 U.S.C. § 2255. Armstrong, 347 F.3d at 908-909,

citing Burke v. United States, 152 F.3d 1329 (11th Cir.1998), cert. denied, 526 U.S.

1145 (1999) (other citations omitted). As explained in Burke, however, "a claim that the

sentence imposed is contrary to a post-sentencing clarifying amendment is a

non-constitutional issue that does not provide a basis for collateral relief in the absence

of a complete miscarriage of justice." 152 F.3d at 1332. See also Lynn v. United

States, 365 F.3d 1225, 1232, 1233 and n. 15 (11th Cir.), cert. denied, 125 S.Ct. 167

(2004) (collecting cases, including Burke). 

2

 Defendant was denied § 2255 relief on the merits, and leave to appeal in forma

pauperis was denied by this court and the Eleventh Circuit. Docs. 118, 128, 142, 147,

and 152. Two subsequent § 2255 motions were summarily dismissed as successive. 

Docs. 160, 162, 174, and 176. 

Case Nos. 4:88cr4019-WS and 4:05cv180-WS/WCS

This is a claim cognizable, if at all, under 28 U.S.C. § 2255.1 Defendant has

already been denied § 2255 relief, however, and must obtain authorization from the

Eleventh Circuit before filing a second or successive motion.2 § 2255 (requiring that "[a]

second or successive motion must be certified as provided in section 2244" to contain

newly discovered evidence, or "a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable."). 

Authorization for filing such a claim has been denied in this circuit. In re Anderson, 396

F.3d 1336, at 1339 (11th Cir. 2005) (denying leave to file successive motion as the

Supreme Court has not made Booker or Blakely retroactive on collateral review). See

also Varela v. United States, 400 F.3d 864, 867 (11th Cir. 2005) (Blakely and Booker do

not apply retroactively on collateral review even when raised in initial § 2255 motion). 

Because Defendant is not entitled to relief under § 3582(c)(2), and has not been

authorized to file a second or successive § 2255 motion, he is not entitled to relief. 

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Case Nos. 4:88cr4019-WS and 4:05cv180-WS/WCS

It is therefore respectfully RECOMMENDED that Defendant's motion (doc. 209)

be SUMMARILY DENIED. 

IN CHAMBERS at Tallahassee, Florida, on July 7, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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