UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 1:01-CR-93-TS

)

TODD ANDREWS )

OPINION AND ORDER

This matter is before the Court on the Defendant, Todd Andrew’s, pro se request for the

Court to reduce his sentence upon consideration of his post-conviction conduct and the

sentencing factors set forth in 18 U.S.C. § 3553(a) [DE 249].

BACKGROUND

The Defendant was charged on December 17, 2001, in a two-count Indictment with

armed bank robbery (18 U.S.C. § 2113(a) and (d)) and carrying and using a firearm during or in

relation to a crime of violence (18 U.S.C. § 924(c), or aiding and abetting the same (18 U.S.C. §

2). The government prosecuted the Defendant under an aiding and abetting theory.

On May 20, 2004, a jury found the Defendant guilty of both counts of the Indictment. On

March 29, 2005, the Court sentenced the Defendant to 57 months imprisonment on Count I. For

Count II, the Court imposed the statutory mandatory minimum sentence of 7 years, to run

consecutive to the term imposed for Count I. The Court also ordered restitution.

The Defendant timely appealed, and the Seventh Circuit affirmed the decision of the

district court in a published opinion, United States v. Andrews, 442 F.3d 996 (7th Cir. 2006). 

On November 7, 2006, the Defendant filed a petition pursuant to 28 U.S.C. § 2255 and

memorandum in support. On June 15, 2007, the Court issued an Opinion and Order denying the

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Defendant’s habeas petition. The Defendant did not appeal the Court’s order of dismissal.

On November 29, 2007, the Defendant moved the Court to reconsider his sentence. The

Defendant asks that the Court reduce his sentence from 57 months to 41 months imprisonment

on Count I. In support of his request, the Plaintiff points to mitigating factors that the Court

recognized during his sentencing, and presents that he has embraced the rehabilitation process

since his imprisonment. On March 13, 2008, the government filed a response in opposition to the

Defendant’s requested relief. The government argues that the request is a successive habeas

petition that must be dismissed for lack of jurisdiction because the Defendant did not obtain

approval from the court of appeals.

DISCUSSION

This Court cannot grant the Defendant any relief on the basis of his request for a sentence

reduction. Section 3582(c) of Title 18, United States Code, is the means by which a district court

may modify a legally-imposed sentence. Under that section, a court may not modify a term of

imprisonment once it has been imposed, except in certain circumstances that are not present in

this case. Section 3582(c) provides three avenues for modification of a sentence: (1) upon

motion of the Director of the Bureau of Prisons where special circumstances exist; (2) if

expressly permitted by statute or by Rule 35 of the Rules of Criminal Procedure; and (3) if a

sentencing range has subsequently been lowered by the Sentencing Commission. 18 U.S.C. §

3582(c). Rule 35, in turn, authorizes a district judge to modify a sentence within seven days of its

imposition to correct a technical error, or on the prosecutor’s motion to reward substantial

assistance rendered after the sentence has been imposed. Neither of the circumstances of Rule 35

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pertains to the Defendant.

The Defendant cites to 18 U.S.C. § 3553 as a basis for relief. But that statute does not

provide a jurisdictional basis for the court to consider his post-sentencing rehabilitative efforts.

Neither does § 3553 purport to apply to the alteration of a sentence, as opposed to the imposition

of a sentence. See 18 U.S.C. § 3553(a) (prescribing the factors that a court should consider “in

imposing a sentence”). The Defendant’s sentence has already been imposed and the time for the

consideration of § 3553 factors has passed.

A person serving a sentence under a judgment imposed by a federal court may

collaterally attack a sentence that was “imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

attack.” 28 U.S.C. § 2255. The Defendant has already collaterally attacked his sentence pursuant

to 28 U.S.C. § 2255 without success, and has not identified his current motion as being a habeas

petition. 

The government, in its response to the Defendant’s request, “construes it as a successive

28 U.S.C. § 2255 petition in disguise.” (Govt. Resp. DE 251 at 2.) The government argues that

because the Defendant did not obtain certification from the court of appeals before filing his

second petition, it should be dismissed for lack of jurisdiction. See Nunez v. United States, 96

F.3d 990, 991 (7th Cir. 1996) (explaining that court of appeals’ authorization for second or

successive petition is, from the district court’s perspective, an allocation of subject-matter

jurisdiction to the court of appeals).

It is true that any post-judgment motion in a criminal proceeding that fits the description

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of a motion to correct a sentence as set forth in § 2255 should be treated as a request for relief

under that statute. United States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007). And the

substance of a motion, not its caption, determines whether it should be construed as a collateral

attack. The Court need not decide whether the Defendant’s request for sentence modification

meets the definition of a successive collateral attack because the Court does not have jurisdiction

over the subject matter under any reasonable construction of the motion. If it is a second petition

under § 2255, the district court lacks subject matter jurisdiction because the Defendant did not

seek or obtain certification from the court of appeals. If the motion does not require court of

appeal authorization, there is still no congressional grant of authority for the requested relief. See

United States v. Smith, 438 F.3d 796, 799–800 (7th Cir. 2006) (noting that § 3582(c) limits the

substantive authority of the district court and is intended to block post-sentencing modifications

by the court); United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996) (stating that “[a]

district court is authorized to modify a Defendant’s sentence only in specified instances where

Congress has expressly granted the court jurisdiction to do so”). Section 3582(c) is the “sort of

limit that must be respected.” Smith, 438 F.3d at 799. 

The Defendant’s motion must be dismissed for lack of subject-matter jurisdiction.

CONCLUSION

For the foregoing reasons, the Defendant’s motion for reduction of sentence [DE 249] is

DISMISSED for lack of subject-matter jurisdiction.

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SO ORDERED on May 6, 2008.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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