United States District Court, E.D. Tennessee, Knoxville
Jordan United States District Judge.
judgment dated December 19, 2007, this court sentenced the
defendant to a net term of imprisonment of 180 months. Now
before the court is the defendant's pro se
motion for sentence reduction [docs. 359, 360], raising the
1. The defendant moves for a two-level minor role reduction
in his offense level, citing United States Sentencing
Guidelines (“U.S.S.G.”) Amendment 794;
2. The defendant moves for a reduction in his sentence
pursuant to Federal Rule of Criminal Procedure 35(a),
alleging that his sentence was based on “‘two
serious drug offenses' when in fact the prior convictions
were not serious”; and
3. The defendant asks for a compassionate release due to the
death of his children's mother.
court will address these issues in turn.
794 went into effect on November 1, 2015, altering
Application Note 3(A) of U.S.S.G. § 3B1.2 and adding a
list of factors to Application Note 3(C). Guideline 3B1.2
allows the court to reduce the offense level of a defendant
who was a “minimal” or “minor”
participant in the offense of conviction. Amendment 794
“provides additional guidance to sentencing courts in
determining whether a [3B1.2] mitigating role adjustment
applies.” U.S.S.G. app. C, amend. 794 (2015).
defendant's request for retroactive application of
Amendment 794 is addressed under 18 U.S.C. § 3582(c)(2).
That statute gives district courts discretion to reduce the
sentence “of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . .,
if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2).
1B1.10 is a policy statement issued by the Sentencing
Commission. Guideline 1B1.10(d) lists the amendments that can
be retroactively applied. Amendment 794 is not on that list.
A sentence reduction under Amendment 794 is therefore not
“consistent with applicable policy statements issued by
the Sentencing Commission, ” and the defendant is not
entitled to a sentence reduction under 18 U.S.C. §
3582(c)(2). See, e.g., Johnson v. United States,
Nos. 2:16-cv-528, 2:10-cr-185, 2016 WL 6084018, at *2 (S.D.
Ohio October 17, 2016) (“Amendment 794 is not
retroactively applicable on collateral review. U.S.S.G.
§ 1B1.10 lists those Guidelines amendments that have
been made retroactively applicable to defendants on
collateral review, and Amendment 794 is not listed.”)
the defendant to rely on United States v.
Quintero-Leyva, 823 F.3d 519 (9thCir. 2016),
and United States v. Carter, Nos. 15-3618, 15-3643,
2016 WL 5682707 (6thCir. Oct. 3, 2016), he would
fare no better. Quintero-Leyva and Carter
hold only that Amendment 794 applies retroactively to cases
on direct appeal to an appellate court.
Quintero-Leyva, 823 F.3d at 523 (“We therefore
hold that [Amendment 794] applies retroactively to direct
appeals.”) (emphasis added); Carter, 2016
WL 5682707, at *6 (“We agree with
[Quintero-Leyva] and adopt its reasoning.”).
the instant defendant's case is not in a posture of
direct appeal, Quintero-Leyva and Carter do
not apply. See, e.g., Klosowski v. United States,
No. 12-cr-20458, 2016 WL 6696023, at *1 (E.D. Mich. Nov. 15,
2016) (“Amendment 794 has not, however, been held to be
retroactive on collateral appeal” by
Quintero-Leyva or Carter.);
Johnson, 2016 WL 6084018, at *2
(Quintero-Leyva “did not hold that such
[retroactive] relief [under Amendment 794] is available on
collateral review, and other courts have concluded that it is
not.”) (citations omitted).
the defendant's offense level was based on his status as
a Career Offender and, as such, would not have been subject
to a minor role reduction in any event. See U.S.S.G.
§§ 1B1.1(a)(6), 4B1.1. (b). For all these reasons,