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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA )

) Criminal No. 07-34 Erie

v. )

)

ELIAS MORALES MORALES )

MEMORANDUM ORDER

McLAUGHLIN, J.

Presently pending before the Court is Elias Morales Morales’ Motion for Reduction of

Sentence [Doc. No. 40].

On January 7, 2008, Morales pled guilty to one count of illegal reentry of a removed

alien, in violation of 8 U.S.C. § 1326 [Doc. No. 25]. On April 7, 2008, Morales was sentenced to

ninety (90) months in prison, followed by two (2) years of supervised release [Doc. No. 28]. 

Morales subsequently appealed his sentence, which was affirmed by the Third Circuit, United

States v. Morales-Morales, 321 Fed. Appx. 176 (3 Cir. 2009), and the Supreme Court denied rd

certiorari, Morales-Morales v. United States, 130 S.Ct. 215 (October 5, 2009). 

On January 29, 2010, Morales filed pro se a document styled “Motion for time reduction

by an inmate in federal custody” [Doc. No. 40]. Morales seeks a “time reduction” of his sentence

based on allegations that, as an alien, he is denied equal rights protection by the Bureau of

Prisons (“BOP”) because he does not qualify for early supervised release and halfway house

placement subsequent to participation in the BOP’s drug treatment program. The Government

filed a response to Morales’ motion on February 16, 2010 [Doc. No. 41]. For the reasons that

follow, Morales’ motion shall be denied.

Generally a district court may not alter a term of imprisonment once it has been imposed. 

United States v. Wise, 515 F.3d 220 (3 Cir. 2008). The exceptions to this general rule, rd

however, are set forth in 18 U.S.C. § 3582(c), which limits the court’s jurisdiction to modify

sentences except as set forth in the statute:

(c) Modification of an imposed term of imprisonment.--The

court may not modify a term of imprisonment once it has been

imposed except that–

(1) in any case--

Case 1:07-cr-00034-SJM Document 42 Filed 02/25/10 Page 1 of 3
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(A) the court, upon motion of the Director of the

Bureau of Prisons, may reduce the term of imprisonment (and may

impose a term of probation or supervised release with or without

conditions that does not exceed the unserved portion of the original

term of imprisonment), after considering the factors set forth in

section 3553(a) to the extent that they are applicable, if it finds

that--

(i) extraordinary and compelling reasons

warrant such a reduction; or

(ii) the defendant is at least 70 years of age,

has served at least 30 years in prison, pursuant to a sentence

imposed under section 3559(c), for the offense or offenses for

which the defendant is currently imprisoned, and a determination

has been made by the Director of the Bureau of Prisons that the

defendant is not a danger to the safety of any other person or the

community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission; and

(B) the court may modify an imposed term of

imprisonment to the extent otherwise expressly permitted by

statute or by Rule 35 of the Federal Rules of Criminal Procedure;

and

(2) in the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission pursuant to 28 U.S.C.

994(o), upon motion of the defendant or the Director of the Bureau

of Prisons, or on its own motion, the court may reduce the term of

imprisonment, after considering the factors set forth in section

3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the

Sentencing Commission.

18 U.S.C. §3582(c); United States v. Higgs, 504 F.3d 456, 464 (3 Cir. 2007). rd

Sections 3582(c)(1)(A) and (c)(2) are not implicated in this case. The Bureau of Prisons

has not filed a motion seeking a reduction, and Morales does not seek a reduction based upon a

subsequent amendment to the Sentencing Guidelines. Section 3582(c)(1)(B) fails to provide

Morales with any grounds for relief. Rule 35(a) of the Federal Rules of Criminal Procedure

provides in pertinent part: “(a) Correcting Clear Error. Within 7 days after sentencing, the

court may correct a sentence that resulted from arithmetical, technical or other clear error.” 

Case 1:07-cr-00034-SJM Document 42 Filed 02/25/10 Page 2 of 3
As of April 7, 2008, when Morales was sentenced, Rule 35(a) contained a seven-day

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time limit. On December 1, 2009, the Rule was amended to provide for a fourteen-day time

limit. Fed.R.Civ.P. 35(a) (2009); United States v. Phillips, __F.3d __, 2010 WL 610883 at *8

n.11 (11 Cir. 2010). Under either version, Morales’ motion is untimely. th

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Fed.R.Crim.P. 35(a). The seven-day time period is jurisdictional. See United States v. Miller,

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__F.3d __, 2010 WL 395917 at *8 (3 Cir. 2010); United States v. Mercer, 2009 WL 3601613 at rd

*2 (W.D.Pa. 2009); United States v. Colaizzi, 2007 WL 3120423 at *1 (W.D.Pa. 2007). Because

Morales’ motion is untimely, this Court lacks jurisdiction to reduce his sentence.

To the extent Morales seeks relief concerning the execution of his sentence by the BOP,

such claims must be brought pursuant to 28 U.S.C. § 2241, and must be filed in the district where

the inmate is confined. See United States v. Kennedy, 851 F.2d 689, 690 (3 Cir. 1988); Sloan rd

v. United States, 2008 WL 2020183 at *3 n.2 (W.D.Pa. 2008). Because Morales is incarcerated

in New York, see Motion to Reduce [Doc. No. 40] p. 1, this Court does not have jurisdiction to

grant the requested relief. 

Accordingly, on this 25 day of February, 2010, for the reasons set forth above,

th

IT IS HEREBY ORDERED that Morales’ Motion for Reduction of Sentence [Doc. No.

40] is DENIED.

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

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