United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
THE COURT is Defendant's pro se Motion
to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2)
(2012), Clarifying Amendment 3B1.2 (“The
Motion”). (Doc. 65). Defendant pled guilty to one count
of Conspiracy to Distribute and Possess with the Intent to
Distribute a Mixture and Substance Containing a Detectable
Amount of Methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 846. (Doc. 31; Doc. 59 at 1). This
Court sentenced Defendant to a term of imprisonment of
sixty-three months. (Doc. 59 at 2). In her Motion, Defendant
seeks a sentence reduction through the retroactive
application of U.S. Sentencing Guidelines Amendment 794,
which clarifies the requirements for mitigating sentences
based upon a defendant's “minor” or
“minimal” role in an offense under U.S Sentencing
Guidelines (U.S.S.G.) § 3B1.2. Specifically, Defendant
asks the Court to grant a “minor role” reduction
to her offense level, which would result in a two-level
reduction from an total offense level of thirty-one to a
total offense level of twenty-nine. See U.S.S.G.
§ 3B1.2(b); (see also Doc. 45 at 7).
term of imprisonment has been imposed it is generally
considered to be “final for all purposes.” 18
U.S.C. § 3582(b). Narrow exceptions exist that permit a
court to modify a term of imprisonment. See 18
U.S.C. § 3582(b), (c). A court is only permitted to
modify a term of imprisonment “if the Bureau of Prisons
moves for a reduction, the Sentencing Commission amends the
applicable Guidelines range, or another statute or [Fed. R.
Crim. P.] 35 expressly permits the court to do
so.” United States v. Goodwyn, 596 F.3d 233,
235 (4th Cir. 2010). Here, the Director of the Bureau of
Prisons has not moved for a reduction, the Government has not
filed a Fed. R.
P. 35 motion, and there is no statute expressly permitting
the Court to reduce Defendant's sentence. However, the
Sentencing Commission has amended U.S.S.G. § 3B1.2
through its adoption of Guidelines Amendment 794.
Court may “reduce a defendant's term of
imprisonment when the Commission has subsequently lowered his
or her sentencing range and made that reduction
retroactive.” United States v.
Dunphy, 551 F.3d 247, 250 (4th Cir. 2009). Section
3582(c)(2) states that “upon motion of the defendant .
. . the court may reduce the term of imprisonment . . .,
if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” § 3582(c)(2) (emphasis added).
The applicable policy statement is U.S.S.G. § 1B1.10,
which provides as follows:
[i]n a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (d)
below, the court may reduce the defendant's term of
imprisonment as provided by 18 U.S.C. 3582(c)(2). As required
by 18 U.S.C. 3582(c)(2), any such reduction in the
defendant's term of imprisonment shall be consistent with
this policy statement.
U.S.S.G. § 1B1.10(a). The United States Court of Appeals
for Fourth Circuit has held that amendments may receive
retroactive application only when expressly listed in §
1B1.10([d]). Dunphy, 551 F.3d at 249 n.2
(“A guideline amendment may be applied retroactively
only when expressly listed in U.S.S.G. §
1B1.10([d]).”); United States v. Williams, 808
F.3d 253, 257 (4th Cir. 2015) (noting § 1B1.10(d)
“lists the Guidelines amendments designated by the
Commission for retroactive application in a § 3582(c)(2)
proceeding”); see also United States v. McHan,
386 F.3d 620, 622 (4th Cir. 2004) (holding that “since
Amendment 645 is not listed in section 1B1.10([d]) [it]
therefore may not be applied retroactively on a section 3582
motion”). As of the date of this Order, Amendment 794
is not listed in U.S.S.G. § 1B1.10(d) as one of the
amendments to be applied retroactively. Therefore, a
reduction in Defendant's sentence is not consistent with
the policy statement because Amendment 794 does not apply
retroactively to sentences that have become final.
in her Motion, cites United States v. Christensen
for the proposition that this Court should consider three
factors in determining whether Guidelines Amendment 794
applies retroactively: “(1) whether the amendment is
included on a list of retroactive amendments in U.S.S.G.
§ 1B1.10([d]); (2) whether the Commission characterized
the amendment as a clarification; and (3) whether the
amendment resolves a circuit conflict.” (Doc. 65 at 6);
United States v. Christensen, 598 F.3d 1201, 1205
(9th Cir. 2010). Defendant emphasizes that Guidelines
Amendment 794 resolves a circuit split and that the language
of the Amendment indicates the Commission intended the
Amendment to be a clarification. (Doc. 65 at 6). The Court
recognizes the factors set forth by the United States Court
of Appeals for the Ninth Circuit in Christensen;
however, as previously discussed, the Fourth Circuit requires
that an amendment be expressly listed in U.S.S.G. §
1B1.10(d) in order for the amendment to receive retroactive
application. See United States v. Brewton, No.
16-7709, 2017 WL 1242007 (4th Cir. Apr. 4, 2017) (holding the
district court did not commit a reversible error in denying
the defendant's 18 U.S.C. § 3582(c) motion on the
grounds that Amendment 794 was not listed as an amendment
receiving retroactive application in Guideline §
1B1.10(d)); United States v. Welch, No. 19-7670,
2017 WL 1241970 (4th Cir. Apr. 4, 2017) ("Guidelines
§ IB 1.10(d), p.s., lists the amendments that receive
retroactive application, and this list does not include
Amendment 794. The district court therefore did not abuse its
discretion in denying [the defendant] the relief she sought
under Amendment 794."); United States v.
McNeill, No. 16-7080, 2016 WL 6936472 (4th Cir. Nov. 28,
2016) ("Section IB 1.10(d) of the Guidelines lists the
amendments that receive retroactive application, and this
list does not include Amendment 794. Therefore, Amendment 794
cannot be given retroactive effect in a § 3582(c)(2)
proceeding."). Furthermore, although the factors from
Christensen may weigh in favor of Defendant's
motion, Christensen, as well as a subsequent Ninth
Circuit case applying the factors in the context of
Guidelines Amendment 794, arose within the context of the
retroactive application of an amendment to a sentence on
direct appeal. See United States v. Quintero-Leyva,
823 F.3d 519, 523 (9th Cir. 2016) (applying factor test from
Christensen to conclude that Amendment 794 applies
retroactively to cases on direct appeal);
Christensen, 598 F.3d at 1203-04 (deciding
retroactive application question in context of direct
appeal). Where interests of finality are not as strong while
a case remains on direct appeal, it is not apparent from the
case law relied on by Defendant that, even under the Ninth
Circuit's approach, Guidelines Amendment 794 would apply
retroactively to Defendant's sentence.
reasons stated above, Amendment 794 lacks retroactive effect
and thus, Defendant has not established a sufficient basis to
warrant a sentence reduction. IT IS, THEREFORE, ORDERED that
Defendant's pro se Motion to Reduce Sentence
Pursuant to 18 U.S.C. § 3582(c)(2), Clarifying Amendment
3B1.2 (Doc. 65) is DENIED.
 The Sentencing Guidelines were amended
on November 1, 2014 to include Amendment 780, which
“redesignat[ed]” subsection (c) as subsection
(d). U.S.S.G. App. C, amdt. 780 (“[s]ection 1B1.10 is
amended in each of subsections (a)(1), (a)(2)(A), (a)(2)(B),
and (b)(1) by striking ‘subsection (c)' each place
such term appears and inserting ...