Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA,
Plaintiff, -v- Case No. 95-CR-151 SALVADOR A. HERNANDEZ,
Defendant. DECISION AND ORDER
Defendant Salvador A. Hernandez (“Hernandez”), a frequent filer of assorted post-conviction motions, has filed a pro se motion for reduction of sentence (Docket No. 89) pursuant to Section 3582(c) of Title 18 of the United States Code. He states that the United [1] States Sentencing Commission adopted a retroactive amendment which eliminated the two-level enhancement for a dangerous weapon under U.S.S.G. § 2A4.1(b)(3) that was applied at his sentencing . See Hernandez v. United States , 226 F.3d 839, 840 (7th Cir. 2000).
*2 Section 3582(c)(2) allows the Court to reduce a term of imprisonment if a subsequent amendment by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) lowers the relevant guideline range, after the Court considers the factors set forth in section 3553(a), and if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission. Because § 3582 limits the substantive authority of district courts, it is a “jurisdictional” rule rather than a case-processing requirement. United States v. Smith , 438 F.3d 796, 799 (7th Cir. 2006).
This Court has carefully reviewed U.S.S.G § 2A4.1(b)(3). Other subsections of § 2A4.1(b) have been amended. However, § 2A4.1(b)(3) has not been eliminated or amended. Therefore, Hernandez has no basis for seeking relief under § 3582. Hernandez’s motion for reduction of sentence is dismissed for lack of subject matter jurisdiction. See Smith , 438 F.3d at 799.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Hernandez’s motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (Docket No. 89) is DISMISSED for lack of jurisdiction.
Dated at Milwaukee, Wisconsin, this 15th day of May, 2007. SO ORDERED: s/ Rudolph T. Randa
HON. RUDOLPH T. RANDA
Chief Judge
2 Case 2:95-cr-00151-RTR Filed 05/15/07 Page 2 of 2 Document 93
[1] In 1995, Hernandez was tried and convicted on federal charges of conspiracy to kidnap and kidnaping in this district. The Honorable Robert W . W arren, who presided over the case, sentenced Hernandez on February 13, 1996. Judgment was entered on March 4, 1996. On February 22, 1996, Hernandez filed a direct appeal. The court of appeals affirmed. United States v. Hernandez , 106 F.3d 737 (7th Cir. 1997). On June 9, 1997, Hernandez filed a petition pursuant to 28 U.S.C. § 2255. That petition was denied by Judge W arren. Hernandez appealed. W hile Hernandez’s appeal from the denial of his first § 2255 petition was pending, Judge W arren passed away on August 20, 1998. The file in this matter was assigned to this Court on October 9, 1998. The court of appeals denied Hernandez’s request for a certificate of appealability and for leave to proceed in forma pauperis on his appeal from Judge W arren’s denial of that § 2255 petition. United States v. Hernandez , No. 97-3728 (7th Cir. Jan 27,1999). Thereafter Hernandez filed a series of successive petitions with this Court. The chronology of the successive petitions Hernandez subsequently filed in this district is described in Hernandez v. United States , Nos. 06-C-1143, 95-Cr- 151, 2006 W L 3203714, at *1 n.3 (E.D. W is. Nov. 2, 2006). Additionally, Hernandez filed a petition for leave to file a successive petition with the court of appeals. That petition was denied. See Hernandez v. United States , 226 F.3d at 839. Case 2:95-cr-00151-RTR Filed 05/15/07 Page 1 of 2 Document 93