United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES UNITED STATES DISTRICT JUDGE.
MATTER IS BEFORE THE COURT on Defendant Dustan Pete
Perry's pro se Motion to Reduce Sentence of
Amendment 794 (the “Motion”). (Doc. 950). On May
4, 2012, Defendant pled guilty to Conspiracy of Distribute,
Possess with Intent to Distribute, and Manufacture
Methamphetamine, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A) (“Count One”), and to Possession
and Distribution of Pseudoephedrine to Manufacture
Methamphetamine, in violation of 21 U.S.C. §§
802(34)(k) and 841(c)(2) (“Count Two”). (Doc.
184; Doc 646 at 1). On December 3, 2013, this Court sentenced
Defendant to a term of imprisonment of two hundred sixty-two
months on Count One, and two hundred forty months on Count
Two, to be served concurrently. (Doc. 646 at 2). In his
Motion, Defendant seeks a sentence reduction through the
retroactive application of U.S. Sentencing Guidelines
(U.S.S.G.) Amendment 794, which clarifies the requirements
for mitigating sentences based upon a defendant's
“minor” or “minimal” role in an
offense. (Doc. 950); see also U.S.S.G. § 3B1.2.
Specifically, Defendant asks the Court to grant a
“minor role” reduction to his offense level,
which would result in either a two, three, or four-level
reduction from his total offense level of forty-one.
(See Doc. 950 at 2-3; see also Doc. 647 at
term of imprisonment has been imposed, it is generally
considered to be “final for all purposes.” 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) (emphasis in original). 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 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.” 18 U.S.C. § 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
U.S.S.G. § 1B1.10([d])1. 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.
reasons stated above, Amendment 794 lacks retroactive effect;
thus, Defendant's Motion does not rely on a proper basis
to permit this Court to consider a reduction to
Defendant's sentence. IT IS, THEREFORE,
ORDERED that Defendant's pro se Motion
to Reduce Sentence of Amendment 794 (Doc. 950) is
 The Sentencing Guidelines were amended
on November 1, 2014 to include Amendment 780, which
“redesignated]” subsection (c) as subsection (d).
U.S.S.G. App. C, amdt. 780 (“[s]ection 1B 1.10 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 ...