In U.S. v. Moreno, No. 04-15950 (Aug. 26, 2005) the Court (Birch, Dubina & Barkett) held that a defendant was not eligible for a post- conviction reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) to invoke the benefit of Amendment 591 of the Sentencing Guidelines, or to take account, in accord with Booker, of his post-sentencing rehabilitative efforts.
Amendment 591 requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on non-jury findings of actual conduct. Moreno claimed that this Amendment prohibited the district court from selecting a base offense level based on drug quantity not found by a jury. The Court rejected this argument, holding that Amendment 591 only applies to the selection of the relevant offense guideline, not to the selection of an offense level within the applicable offense guideline.
The Court also found no plain error in the district court’s determination that it lacked a jurisdictional basis to reduce Moreno’s conduct based on his post-sentencing rehabilitative conduct. The Court noted that § 3582 does not contemplate a de novo sentencing. Further, Booker does not apply to cases on collateral review: "Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions."