UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
January 5, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
JERMAINE SMOKES, DEFENDANT.
The opinion of the court was delivered by: David G. Larimer United States District Judge
DECISION AND ORDER
By motion filed December 17, 2010 (Dkt. #27), the defendant moves, pro se, to reduce the 97 month sentence imposed by this Court on June 25, 2008. Defendant relies on an amendment to the Sentencing Guidelines, effective November 1, 2010, pursuant to the Fair Sentencing Act of 2010.
The motion is in all respects denied. The statute does not provide for its retroactive application and the United States Court of Appeals for the Second Circuit has held that defendants, such as Smokes, who committed their offense prior to enactment of the statute are not entitled to its benefits. United States v. Baldwin, 2010 WL 4250060 (2d Cir., October 27, 2010). Therefore, because the Act does not apply retroactively, defendant's motion must be denied.
Defendant's motion (Dkt. #27) to reduce his previously imposed sentence is in all respects denied.
IT IS SO ORDERED.
Rochester, New York
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