PAUL MAGNUSON, Senior District Judge
This matter is before the Court on Defendant Calvin Lucien Delpit's Motion to Modify his Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, the Motion is denied.
BACKGROUND
On January 25, 1995, Defendant pled guilty to felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On March 1, 1995, a jury convicted Defendant of the following crimes: use of interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958(a); conspiracy to engage in interstate travel in the commission of murder-for-hire, in violation of 18 U.S.C. § 371; and the use of firearms in connection with a crime of violence, in violation of 18 U.S.C. § 924(c).
On June 13, 1995, this Court sentenced Defendant to a 228-month prison term and three years of supervised release. The Court expressly noted that no aggravating or mitigating circumstances existed that were not adequately considered by the Sentencing Commission, and that the sentence imposed was at the low end of the guideline range because that term would adequately punish and deter Defendant.
Defendant's conviction and sentence were affirmed on direct appeal. See United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996). Defendant subsequently filed several petitions for writ of habeas corpus under 28 U.S.C. § 2255, all of which the Court denied.
In March 2005, Defendant filed the instant Motion under 18 U.S.C. § 3582(c)(2). He maintains that his Sixth Amendment rights were violated because his sentence was enhanced based on factors that were not included in the Superseding Indictment or found by a jury. He therefore asks that the Court re-sentence him in light of United States v. Booker, 125 S. Ct. 738 (Jan. 12, 2005).
In Booker, the United States Supreme Court held that the Sixth Amendment entitles criminal defendants to have a jury find beyond a reasonable doubt the existence of any particular fact that the law makes essential to their punishment. The Supreme Court also found that 18 U.S.C. §§ 3553(b)(1) and 3742(e), which make the United States Sentencing Guidelines mandatory, are incongruous with the Sixth Amendment and therefore severed those sections from the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. As modified, the Sentencing Reform Act makes the Sentencing Guidelines advisory. 125 S. Ct. at 756-69.
DISCUSSION
The Court may not modify a term of imprisonment once it has been imposed unless the United States Sentencing Commission subsequently lowers the term of imprisonment pursuant to 28 U.S.C. § 994(o). See 18 U.S.C. § 3582(c)(2). Only then may the Court determine whether a reduction is appropriate under the factors set forth in § 3553(a). Id.
Although Defendant brings this Motion under § 3582(c)(2), he fails to identify any amendment made by the Sentencing Commission under § 994(o) that would reduce his term of imprisonment. Instead, Defendant seemingly argues thatBooker invalidated all sentencing guideline provisions that enhanced his sentence. His argument fails for several reasons.
First, Booker does not apply retroactively. Generally new substantive rules apply retroactively while new procedural rules do not. See Shiro v. Summerlin, 124 S.Ct. 2519, 2522 (2004). "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes . . . [while] rules that regulate only the manner of determining the defendant's culpability are procedural." Id. at 2523.Booker does not alter the range of conduct or class of persons punished by the law, but rather affects how the length of punishment is determined — that is, it transfers the fact finding authority from the judge to the jury. Therefore, the Court finds that Booker imposes a new procedural rule.
In order for a procedural rule to apply retroactively to cases on collateral review, the Court must: (1) determine the date Powell's conviction became final; (2) decide whether the procedural rule outlined in Booker is new; and (3) determine if the new rule falls under the exceptions outlined in Teague v. Lane, 489 U.S. 288 (1989). See Teague, 489 U.S. at 301-310. Defendant's conviction became final in 1996, and thus the Court must proceed to the next step of the analysis. The rule outlined in Booker is undoubtedly new, as it was not dictated by precedent. Finally, the Court must determine if the rule outlined in Booker is subject to one of two Teague exceptions: (1) the rule de-criminalizes an activity; or (2) it is a "watershed" rule of criminal procedure that implicates the "fundamental fairness and accuracy of the criminal proceeding." Teague, 489 U.S. at 307. There is no dispute that the first exception does not apply. However, the Court's inquiry will focus on whether Booker falls under the second Teague exception.
The Supreme Court previously held that the rule established inRing v. Arizona, 536 U.S. 584 (2002), which allocated sentencing fact-finding to the jury in death penalty cases, was not retroactively applicable because it did not fall under the second Teague exception. Summerlin, 124 S.Ct. at 2525. The Court concluded that judicial fact-finding does not "seriously diminish the accuracy that there is an `impermissibly large risk' of punishing conduct the law does not reach." Id. Like Ring, Booker re-allocated the authority to make certain factual findings from the judge to the jury. This shift does not necessarily render the prior practice seriously unfair or inaccurate. Furthermore, like Ring, Booker was an extension of the decision announced in Apprendi v. New Jersey, which is not applied retroactively. Therefore, this Court agrees with the other courts who have addressed this issue, and joins in the conclusion that Booker is not retroactively applicable because it does not fall under the second Teague exception. See e.g., Morales v. United States, File No. 99-229(3), 2005 WL 807051 (D. Minn. Apr. 7, 2005) (Montgomery, J.).
Second, the Eighth Circuit Court of Appeals has expressly stated that the sentencing court is to consider the Sentencing Guidelines to determine the appropriate sentencing range. See United States v. Haack, ___ F.3d ___, 2005 WL 840124 at *5 (8th Cir. Apr. 13, 2005). Thus, Defendant is incorrect in arguing thatBooker voided the Sentencing Guideline provisions on which the Court previously relied.
CONCLUSION
The Court commends Defendant for his accomplishments while incarcerated and encourages Defendant to continue his valiant efforts at rehabilitation. Nevertheless, IT IS HEREBY ORDERED THAT Defendant Calvin Lucien Delpit's Motion to Modify his Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2) (Clerk Doc. No. 688) is DENIED.