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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:99cr62-RH 

vs. Case No. 4:05cv119-RH/WCS

ANTHONY SWATZIE, 

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION

This cause is before the court on Defendant's "Petition for a Federal Sentencing

Reduction and or Relief Pursuant to Title 18 U.S.C. 3582(c)(2) // a Petition to Correct an

Unconstitutional Sentence." Doc. 66. Defendant asserts that, pursuant to § 3582(c)(2),

the court should correct an unconstitutional sentence pursuant to 18 U.S.C. § 3742. 

Defendant asserts that the finding of drug quantity by the court at sentencing rather than

by the jury violated the Sixth Amendment. Doc. 66, pp. 4-16 (issue one). He also

challenges his sentencing as an armed career offender, asserting this was not

determined by a jury and that the state offenses relied upon did not justify

enhancement. Id., pp. 17-22 (issue two). 

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1

 The motion was titled as: "Motion for Void Judgment for Lack of Subject Matter

Jurisdiction for the United States District Court to Use Prior State Convictions to

Sentence Enhance Defendant on Evidence of 'State Offenses,' and the Judgment Is

Void for Stating in the Judgment Nature of Offense Possession with Intent to Distribute

Cocaine Base and Cocaine, When it Was Never Proved That 'Crack Cocaine' Was

Involved." Doc. 60. 

2

 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 the applicable policy statements issued by

the Sentencing Commission;" i.e., if the amendment is listed in U.S.S.G. § 1B.10(c). §

1B1.10(a); United States v. Pelaez, 196 F.3d 1203, 1205, n. 3 (11th Cir. 1999). 

Defendant has not identified any retroactive amendment authorizing modification under

§ 3582(c)(2). Section 3742 governs review of a sentence on appeal, but Defendant's

appeal was decided years ago. Doc. 46; United States v. Swatzie, 228 F.3d 1278 (11th

Cir. 2000), cert. denied, 533 U.S. 953 (2001). 

Case Nos. 4:99cr62-RH and 4:05cv119-RH/WCS

Defendant was sentenced to life and judgment was entered on the docket on

February 11, 2000. Doc. 29. Defendant filed a motion to vacate sentence pursuant to

28 U.S.C. § 2255, doc. 48, which was denied with prejudice. Docs. 57-59 (report and

recommendation, order, and judgment entered on August 21, 2003). Defendant did not

appeal. 

In 2004, Defendant filed a motion for relief from the criminal judgment pursuant to

Fed.R.Civ.P. 60(b). Doc. 60.1 This court found it lacked jurisdiction, as the motion was

essentially a second or successive § 2255 motion which had not been authorized by the

court of appeals. Docs. 61 and 63, both citing, inter alia, Gonzalez v. Secretary for

Dept. Of Corrections, 366 F.3d 1253 (11th Cir. 2004), pet. for cert. granted in part, 

U.S. , 125 S.Ct. 961; cert. denied, U.S. , 125 S.Ct. 965 (2005). Defendant also

filed a motion to recall judgment which was denied. Docs. 64 and 65. 

Now Defendant seeks relief citing § 3582(c)(2) and § 3742, neither of which

authorizes relief.2 As with the purported Rule 60(b) motion, the court should construe

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Case Nos. 4:99cr62-RH and 4:05cv119-RH/WCS

the purported § 3582 motion as an attempt to file a second or successive motion under

§ 2255. See Gonzalez, 366 F.3d at 1277, n. 10 (the limitations on recharacterizing a

document as a first § 2255 motion do not extend beyond initial filings, or allow movant

to evade the restrictions on second or successive motions). Defendant has not

obtained authorization from the court of appeals, and this court may not consider his

second or successive motion. § 2255 (referencing § 2244); § 2255 Rule 9 (party must

obtain authorization from court of appeals before presenting a second or successive

motion). 

It is therefore respectfully RECOMMENDED that Defendant's motion for

sentencing reduction (doc. 66) be SUMMARILY DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on May 18, 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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