United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on the Defendant's pro
se Motion to Reduce Sentence Pursuant to 18 U.S.C.
§ 3582(c)(2) (2012) (the "Motion"). (Doc. 24).
Defendant has also filed a letter in support of her Motion.
(Doc. 25). For the following reasons, Defendant's Motion
(Doc. 24) is DENIED.
pled guilty to one count of conspiracy to distribute, possess
with the intent to distribute and manufacture
methamphetamine, in violation of 21 U.S.C. § 846. (Doc.
17 at 1). The Court sentenced Defendant to a term of
imprisonment of 120 months. Id. 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 reducing a
defendant's offense level based upon a defendant's
"minor" or "minimal" role in an offense
under U.S. Sentencing Guidelines Manual (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 the total offense
level of thirty-two to a total offense level of thirty.
See U.S.S.G. § 3B 1.2(b); (see also
Doc. 15 at 2; Doc. 12 at 10-11).
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. Crim. 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
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.
§ IB 1.10, 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.
§ 1B1.10(a). The United States Court of Appeals for
Fourth Circuit has held that amendments may receive
retroactive application only when listed in U.S.S.G. §
lBl.lO([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. §
lB1.109([d])."); United States v. Williams, 808
F.3d 253, 257 (4th Cir. 2015) (noting § IB 1.10(d)
"lists the Guidelines amendments designated by the
Commission for retroactive application in a § 3582(c)(2)
proceeding"). 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. United States v.
Welch, ___ F.App'x ___, 2017 WL 1241970, at *1 (4th
Cir. Apr. 4, 2017) ("Guidelines § 1B1.10(d), p.s.,
lists the amendments that receive retroactive application,
and the list does not include Amendment 794.").
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. See Kemp v. United States, 2017 WL 455403, at
*1 (E.D. N.C. Feb. 2, 2017).
in her letter in support of her Motion, raises a medical
concern, representing that she is "awaiting cardiac
surgery due to two aneurisms in her heart." (Doc. 25).
"The court, upon motion of the Director of the Bureau of
Prisons, may reduce the term of imprisonment . . . after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if it finds that . . .
extraordinary and compelling reasons warrant such a
reduction. See 18 U.S.C. § 3582(c)(1)(A).
"A prisoner's serious medical condition may amount
to an 'extraordinary and compelling reason' however,
where the Bureau of Prisons has not moved to reduce the terms
of a defendant's sentence, the [c]ourt may not modify a
term of imprisonment on grounds of a medical condition."
Garafola v. United States, 909 F.Supp.2d 313, 339
(S.D.N.Y. 2012) (internal quotation marks omitted); see
also Engle v. United States, 26 F.App'x 394, 397
(6th Cir. 2001) ("A district court may not modify a
defendant's federal sentence based on the defendant's
ill health, except upon a motion from the Director of the
Bureau of Prisons."). Accordingly, at present, this
Court lacks the authority to provide Defendant any relief
based on her alleged heart condition.
THEREFORE, ORDERED that Defendant's pro se
Motion to Reduce Sentence Pursuant to 18 U.S.C. §
3582(c)(2) (Doc.24) 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)(B), and (b)(1) by
striking 'subsection (c)' each place such term
appears and inserting 'subsection (d)'; [and] ...