United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
the Court is the Defendant's Motion for Reduction of
Sentence pursuant to 18 U.S.C. § 3582(c)(2) filed on
August 30, 2017. (ECF No. 75). The United States filed its
response on October 25, 2017. (ECF No. 79). Defendant has not
filed a reply. The matter is ready for report and
Robert J. Rosso, Jr. (“Rosso”), was indicted on
January 14, 1998 and charged with conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and 846. (ECF No. 1). An Information Filed to Seek
Enhancement Pursuant to Title 21 U.S.C. § 851(a) was
filed by the United States on January 23, 1998. (ECF
No's. 5, 79-1). Rosso appeared for arraignment on January
29, 1998; he entered a plea of not guilty to the Indictment,
and a jury trial was set on March 30, 1998. (ECF No. 6). At
the conclusion of the trial, the jury returned its verdict
finding Rosso guilty of conspiracy to distribute
methamphetamine. (ECF No's. 11; 74, p. 193).
Presentence Investigation Report (“PSR”) was
prepared by the United States Probation Office on May 8,
1998. (ECF No. 14). On May 15, 1998, the Government advised
that it had no objections to the PSR, but that corrections
were needed in paragraphs 10 and 11. (ECF No. 14, p. 15). On
May 26, 1998, Rosso advised that he had no objections to the
PSR. (Id.). The corrections requested by the
Government were made, and a revised PSR, together with an
Addendum, was submitted on June 8, 1998. (ECF No. 14, p. 1).
final PSR determined that Rosso was accountable for 1.1
kilograms of actual methamphetamine or 4.2 kilograms of a
mixture of methamphetamine, and based on that drug quantity
Rosso's base offense level was determined to be 34. (ECF
No. 14, ¶¶ 17, 19, 24). A four-level enhancement
was assessed for Rosso's aggravating role in the offense
as an organizer, leader, manager, or supervisor of a criminal
activity that involved five or more participants or was
otherwise extensive. (ECF No. 14, ¶ 27). Because Rosso
was at least 18 years of age at the time of the offense, the
offense was a felony controlled substance offense, and he had
at least two prior felony convictions for controlled
substance offenses, Rosso was considered a career offender.
(ECF No. 14, ¶ 32). Rosso's total offense level was
determined to be 38. (ECF No. 14, ¶ 33).
had three prior felony controlled substance convictions. (ECF
No. 14, ¶¶ 35, 37, 39). Rosso's criminal
history score of nine would have placed him in criminal
history category IV, but because he was determined to be a
career offender his criminal history category was
automatically VI. (ECF No. 14, ¶ 43).
stated in the PSR, pursuant to 21 U.S.C. § 841(b)(1)(A)
any person having two or more prior convictions for a felony
drug offense shall be sentenced to a mandatory term of life
imprisonment without release. (ECF No. 14, ¶ 54). With a
total offense level of 38 and a criminal history category of
VI, Rosso's Guidelines range was determined to be 360
months to life imprisonment; however, pursuant to U.S.S.G.
§ 5G1.1, because the statute requires a mandatory term
of life imprisonment without release, the Guidelines range
shall be life imprisonment without release. (ECF No. 14,
appeared for sentencing on July 17, 1998. (ECF No. 13). The
Court made inquiry that Rosso was satisfied with his counsel
(ECF No. 72, p. 4); the PSR was reviewed and adopted (ECF No.
72, p. 13); Rosso and his counsel were afforded the
opportunity to speak and make a statement (ECF No. 72, p.
14); and, the Court then imposed the statutorily required
sentence of life imprisonment without release, a $15, 000.00
fine, and a $100.00 special assessment (ECF No. 72, p. 19).
Judgment was entered by the Court on July 17, 1998. (ECF No.
Eighth Circuit Court of Appeals affirmed Rosso's
conviction and sentence on June 17, 1999. United States
v. Rosso, 179 F.3d 1102 (8th Cir. 1999).
has attempted, unsuccessfully, to obtain post-conviction
relief on numerous occasions. Rosso filed a motion pursuant
to 28 U.S.C. § 2255 on September 8, 2000. (ECF No. 27).
The motion was denied on June 6, 2001. (ECF No. 36). A
certificate of appealability was denied by this Court on
September 5, 2001 (ECF No. 42), and the Eighth Circuit Court
of Appeals dismissed Rosso's appeal on February 20, 2002
(ECF No. 46). The Eighth Circuit Court of Appeals also denied
Rosso's petitions for authorization to file successive
habeas applications in the district court on January 24, 2006
(ECF No. 47) and on May 18, 2012 (ECF No. 58). A motion for
remission of the fine (ECF No. 48) was denied on October 21,
2008 (ECF No. 53). A motion to correct clerical errors (ECF
No. 54) was denied on October 19, 2011 (ECF No. 57). A motion
to modify (ECF No. 59) was denied on July 16, 2013 (ECF No.
64), and his appeal from that order was summarily dismissed
by the Eighth Circuit Court of Appeals on December 2, 2013
(ECF No. 71-1).
August 30, 2017, nearly three years after Amendment 782 to
the United States Sentencing Guidelines became effective on
November 1, 2014, Rosso filed his pro se Motion for
Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2)
contending a reduction of his sentence is warranted pursuant
to Amendment 782. (ECF No. 75).
courts are forbidden, as a general matter, to ‘modify a
term of imprisonment once it has been imposed, ' 18
U.S.C. § 3582(c); but the rule of finality is subject to
a few narrow exceptions.” Freeman v. United
States, 564 U.S. 522, 526 (2011). 18 U.S.C. §
3582(c) sets forth three exceptions: (1) in certain
circumstances “upon motion of the Director of the
Bureau of Prisons, ” see 18 U.S.C. §
3582(c)(1)(A); or, (2) “to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure, ” see 18 U.S.C.
§ 3582(c)(1)(B); or, (3) “upon motion of the
defendant or the Director of the Bureau of Prisons, ...