United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
criminal case is before the Court the defendant's pro se
Motion to Vacate under 28 U.S.C. § 2255 [Doc. 448]. In
this motion, the defendant seeks a sentence reduction
pursuant to Amendment 794 to the United States Sentencing
Guidelines (“U.S.S.G.”) [Id. at pp. 1-2,
4]. The government has responded in opposition to this motion
March 23, 2015, defendant was sentenced to a term of
imprisonment of 84 months as a result of her guilty plea to
conspiring to manufacture 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A) [Doc. 325]. She did not file a
direct appeal of her conviction or sentence.
initial point, the Court notes that “the proper vehicle
for an inmate to obtain a sentence reduction because of a
change in the sentencing guidelines is 18 U.S.C. §
3582(c)(2), not 28 U.S.C. § 2255.” Cook v.
United States, Nos. 2:10-cr-26, 2:15-cv-212, 2016 WL
7321304, at *7 (E.D. Tenn. Dec. 14, 2016) (Greer, J.).
Therefore, the defendant should have made her request for a
sentence reduction pursuant to Amendment 794 by means of an
18 U.S.C. § 3582(c)(2) motion, not by a 28 U.S.C. §
courts may exercise their discretion to ignore the incorrect
legal label that a pro se litigant attaches to a pleading or
motion and re-characterize it for the purpose of placing it
within a different legal category. Castro v. United
States, 540 U.S. 375, 381 (2003). The federal courts may
do so to: (1) avoid unnecessary dismissal; (2) avoid
inappropriately stringent applications of formal labeling
requirements; or (3) create a better correspondence between
the substance of a pro se claim and its underlying legal
basis. Id. at 381-82.
the sole form of requested relief is a sentence reduction
pursuant to Amendment 794, the Court finds it appropriate to
ignore the defendant's incorrect labeling of her motion
as a 28 U.S.C. § 2255 motion and re-characterize it as
an 18 U.S.C. § 3582(c)(2) motion. Even if the Court were
to review defendant's motion as a § 2255 petition,
it appears that such a request would be foreclosed by the
one-year statute of limitations in 28 U.S.C. §
a court has imposed a sentence, it does not have the
authority to change or modify that sentence unless such
authority is expressly granted by statute.” United
States v. Thompson, 714 F.3d 946, 948 (6th Cir. 2013)
(quoting United States v. Curry, 606 F.3d 323, 326
(6th Cir. 2010)); accord Dillon v. United States,
560 U.S. 817, 824 (2010). One such statute is 18 U.S.C.
§ 3582(c)(2), which authorizes a sentence reduction when
consistent with the policy statements in the Sentencing
Guidelines, where a defendant “has been sentenced to a
term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission”
via a retroactively applicable amendment. 18 U.S.C. §
3582(c)(2); see also 28 U.S.C. § 994(u); U.S.
Sentencing Guidelines Manual § 1B1.10.
1B1.10 of the Sentencing Guidelines contains the policy
statement for § 3582(c)(2). Subsection 1B1.10(a)
provides that the Court may reduce the defendant's term
of imprisonment if the applicable guideline range has
subsequently been lowered by one of the amendments named in
subsection (d).” United States v. Bonds, 839
F.3d 524, 529 (6th Cir. 2016); see also United States v.
Watkins, 655 F. App'x 478, 479 (6th Cir. 2016)
(“If no amendment listed in § 1B1.10(d) lowers the
defendant's ‘applicable guideline range, ' then
a sentence reduction is inconsistent with § 1B1.10 and,
therefore, not authorized by § 3582(c)(2).”)
(citing U.S.S.G. § 1B1.1(a)(2)(B)).
794 took effect November 1, 2015, over seven months after
defendant was sentenced, and clarifies the circumstances
under which courts may grant a minor- or minimal-role
reduction under U.S.S.G. § 3B1.2. The Sentencing
Commission has not designated Amendment 794 as retroactive.
U.S. Sentencing Guidelines Manual § 1B1.10(d). Because
Amendment 794 does not apply retroactively, § 3582(c)
does not authorize any reduction in defendant's sentence.
See Cook, 2016 WL 7321304, at *7; see Johnson v.
United States, Nos. 2:16-cv-428, 2:10-cr-185, 2016 WL
6084018, at *2 (S.D. Ohio Oct. 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 on collateral review,
and Amendment 794 is not listed.”).
reliance on United States v. Quintero-Levya, 823
F.3d 519 (9th Cir. 2016) [Doc. 448 at p. 2] is misplaced.
First, the Court notes that opinions from another Circuit may
be persuasive, but are not binding on this Court. See,
e.g., United States v. Hernandez, 443 Fed. App'x 34,
40 (6th Cir. 2011) (cases decided by other circuits
“are merely persuasive”); Cross Mtn. Coal,
Inc. v. Ward, 93 F.3d 211, 217 (6th Cir. 1996)
(“even though the decisions of other circuits are
entitled to our respect, they are not binding upon
us”). Further, and most importantly,
Quintero-Levya and the Sixth Circuit only recognize
Amendment 794 to apply retroactively in direct appeals.
Quintero-Levya, 823 F.3d at 523; see United
States v. Carter, No. 15-3618, 2016 WL 5682707, at *6
(6th Cir. Oct. 3, 2016). As set forth above, Amendment 794
has not been designated for retroactive application to cases
on collateral review.
for all the foregoing reasons, defendant's motion under
28 U.S.C. § 2255 to vacate, set aside, or correct
sentence [Doc. 448] is DENIED. The Clerk is