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United States v. Jenkins

United States District Court, M.D. Alabama, Northern Division

March 28, 2017

UNITED STATES OF AMERICA
v.
MARCUS ATWAN JENKINS

          MEMORANDUM OPINION AND ORDER

          W. Harold Albritton Senior United States District Judge

         Defendant Marcus A. Jenkins filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2). See Doc. 826. Pursuant to 28 U.S.C. § 636(b)(1) this matter was originally referred to the United States Magistrate Judge for development of the issues related to the motion. See Doc. 827. The United States filed its response on October 19, 2016. See Docs. 829-831. Jenkins had the opportunity to file a reply on or before November 9, 2016. See Doc. 832. To date, no reply has been filed.

         I. BACKGROUND

         On May 29, 2008, Defendant Jenkins was charged in a seven-count indictment See Doc. 1. A grand jury returned a fifty-two count superseding indictment on June 20, 2008 naming Jenkins and other co-defendants. See Soc. 8. Defendant Jenkins entered into a plea agreement October 3, 2008. See Doc. 308. By pleading guilty to Count 1 of the Superseding Indictment, the remaining counts of the Superseding Indictment were dismissed. Id.

         Within the plea agreement, Defendant Jenkins agreed to the following:

a. To plead guilty to Count 1 of the Superseding Indictment.
b. Not commit any State, local or federal offenses.
c. At sentencing, defendant specifically agrees to waive any and all arguments pursuant to Kimbro v. United States and/or United States v. Booker regarding sentencing disparity between cocaine base (or “crack”) and powder cocaine. In short, the defendant specifically agrees to be sentenced pursuant to the United States Sentencing Guidelines.
d. To forfeit any and all contraband including firearms and elicit assets derived from criminal activity during the course of this conspiracy.
e. Comply with the Cooperation Agreement.

See Doc. 308.

         Defendant Jenkins agreed to fully cooperate and testify against others when called upon to do so by law enforcement officers and attorneys for the United States. Id. In addition, the Defendant waived his right to appeal his sentencing pursuant to 18 U.S.C. § 3742. Id.

         II. LAWAND DISCUSSION

         No clear guidance exists as to whether Jenkins' motion should be analyzed under 18 U.S.C. § 3582(c) or treated as a motion for relief under 28 U.S.C. § 2255. See Doc. 832. Under 18 U.S.C. ยง 3582(c), the Motion to Reduce Sentence fails because Amendment 794 is not retroactive ...


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