United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
O'Terrell Boutte (“Boutte”) filed a Motion
for Concurrent and Coterminous Judgments pursuant to 18
U.S.C. § 3582 (Doc. 9), asking that his federal sentence
for a firearms offense be made to run concurrently with his
previously imposed state sentence. Because § 3582 does
not afford Boutte relief and the case law he relies on has
been overruled, his motion (Doc. 12) should be denied.
2009, pursuant to guilty pleas on two counts, Boutte was
convicted and sentenced to a total of 144 months for one
count of possession with intent to distribute cocaine (21
U.S.C. § 841), and one count of possession of a firearm
in furtherance of a drug trafficking offense (18 U.S.C.
§ 924(c)) (Doc. 70). The sentence was imposed to run
concurrently with a previously imposed state sentence,
except that 5 years was to run consecutively to the state
court sentence (Doc. 70).
2010, Boutte's federal sentences were amended pursuant to
Fed. R. Cr. P. 35(b), on motion of the government (Docs. 83,
91). Boutte was resentenced to 96 months on the conviction
for possession with intent to distribute cocaine, and 36
months for his conviction for possession of a firearm in
furtherance of a drug trafficking crime (Doc. 91). The
sentence of 96 months was imposed to run concurrently with a
previously imposed state sentence (Doc. 91). However, the
36-month sentence was imposed to run consecutive to the state
court sentence and to the 96 month sentence.
2014, Boutte's sentence on his federal drug offense was
reduced pursuant to 18 U.S.C. § 3582(c)(2), because the
applicable guideline sentencing range had been subsequently
lowered and made retroactively applicable (Doc. 94).
Boutte's 96-month sentence on the conviction for
possession with intent to distribute cocaine was reduced to
63 months (Doc. 94), again to run concurrently with the
previously imposed state sentence (Doc. 95). The Court
reiterated that the 36-month sentence imposed on the other
count was unaffected by the change in the guideline range and
was still to run consecutively to both the 63 month sentence
and the state sentence (Docs. 94, 95).
current Motion for Concurrent and Coterminous Judgments,
Boutte asks this Court to modify his sentence to impose the
36-month sentence (for firearms use) to run concurrently with
the state court sentence (Doc. 97).
Law and Analysis
cites 18 U.S.C. § 3582 in his motion. However, §
3582 does not allow for modification of sentence.
district court's authority to correct or modify a
sentence is limited to those specific circumstances
enumerated by Congress in 18 U.S.C. § 3582(c). See
United States v. Battaglini, 62 Fed.Appx. 557, *1 (5th
Cir. 2003) (citing U.S. v. Bridges, 116 F.3d 1110,
1112 (5th Cir. 1997)). In summary, a court may modify a term
of imprisonment after it has been imposed: (1) upon motion of
the Director of the Bureau of Prisons; (2) pursuant to Fed.
R. Cr. P. rule 35; or (3) if the applicable sentencing
guideline range has been lowered and made retroactive.
See 18 U.S.C. § 3582(c); see also
Bridges, 116 F.3d at 1112. Rule 35 provides for
modification of a sentence: (1) due to clear error (within 14
days of sentencing); or (2) upon the government's motion
for reduction due to substantial assistance from the
the conditions for granting relief under § 3582(c),
including those applicable under Fed. R. Cr. P. 35, are
present in this case.
further noted that the decision relied on by Boutte, U.S.
v. Gonzales, 65 F.3d 814 (10th Cir. 1995), was vacated
by the United States Supreme Court at 520 U.S. 1 (1997). The
Supreme Court held a federal district court cannot direct
that a term of imprisonment imposed under 18 U.S.C. §