United States District Court, W.D. North Carolina, Statesville Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Petitioner Sebastian
Alexander Morris's pro se motion to modify his sentence
in light of an amendment to the United States Sentencing
Guidelines (“U.S.S.G.”). (Doc. No. 1). Although
Morris styles his motion as one brought under 28 U.S.C.
§ 2255, he actually is seeking a remedy afforded under
18 U.S.C. § 3582(c)(2).
April 24, 2014, Morris entered a straight up guilty plea to
transporting child pornography and aiding and abetting the
same, in violation of 18 U.S.C. §§ 2252A(a)(1),
(b)(2) and 18 U.S.C. § 2 (Count One), and possession of
child pornography, in violation of 18 U.S.C. §§
2252A(a)(5)(B), (b)(2) (Count 2). Accept. & Entry of
Plea, Doc. No. 19. A Presentence Investigation Report
(“PSR”) was prepared for sentencing purposes.
PSR, Doc. No. 29. Using the 2013 United States Sentencing
Guidelines (“U.S.S.G.”) Manual, the probation
officer concluded Morris had a total offense level of 34,
which included a two-point enhancement for distribution of
child pornography pursuant to U.S.S.G. § 2G2.2(b)(3)(F).
PSR ¶¶ 23, 32-34. With a criminal history level of
I, Morris's guidelines sentencing range was 151-188
months' imprisonment. Id. at ¶ 63.
sentencing, however, the Court departed downward nine-levels,
leaving Morris a total offense level of 25. State. of Reasons
4, Doc. No. 42. At that offense level, Morris's
sentencing range was 60 to 71 months'
imprisonment. PSR p. 19. The Court sentenced him to
concurrent 60 month sentences, the mandatory statutory
minimum sentence. J., Doc. No. 41.
did not file a direct appeal. He filed the instant Motion on
December 6, 2016, when he placed it in the prison mail
system. (Mot. 13, Doc. No. 1.) He seeks a reduction in his
sentence under an amendment to the Sentencing Guidelines.
petitioner ordinarily may not use 28 U.S.C. § 2255 to
seek a sentence reduction based on subsequent amendments to
the Sentencing Guidelines. See United States v.
Goines, 357 F.3d 469, 477 (4th Cir. 2004). A motion for
sentence reduction based on a Guidelines amendment should be
filed under 18 U.S.C. § 3582(c)(2), not § 2255.
See id. at 477-81. In other words, Petitioner's
requested relief is not cognizable in a § 2255
proceeding. Accordingly, the Court shall construe the instant
Motion as one brought pursuant to 18 U.S.C. §
3582(c)(2) permits a retroactive offense level reduction if
the defendant's sentence was “based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission, ” and “such a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” Id. The “applicable policy
statements” referenced in § 3582(c)(2) are found
in U.S.S.G. § 1B1.10. Dillon v. United States,
560 U.S. 817, 826 (2010).
requests a reduction of his sentence under Sentencing
Guidelines Amendment 801, which became effective November 1,
2016. (Mot. 12). As is relevant here, Amendment 801
“addresses differences among the circuits involving
application of the tiered distribution enhancements in
[Guideline] § 2G2.2, ” which “provide[ ] for
an increase for distribution of child pornographic material
ranging from 2 to 7 levels depending on certain
factors.” U.S.S.G. Supp. to App'x C, Amend. 801,
Reason for Amendment. As noted, Morris received a two-level
enhancement under “§ 2G2.2(b)(3)(F). PSR ¶
is not eligible for § 3582(c)(2) relief. The Court may
“reduce a defendant's term of imprisonment when the
[United States Sentencing] 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). The Fourth Circuit has held
that “[a] guideline amendment may be applied
retroactively only when expressly listed in U.S.S.G. §
1B1.10([d]).” Id. at 249 n.2; see also
United States v. Williams, 808 F.3d 253, 257 (4th Cir.
2015) (noting that § 1B1.10(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
801 is not listed in U.S.S.G. § 1B1.10(d) as one of the
amendments to be applied retroactively. Because Amendment 801
does not apply retroactively, Morris's § 3582(c)(2)
Motion must be denied.
styled as a 28 U.S.C. § 2255 Motion to Vacate, Set Aside
or Correct Sentence, based upon the nature of the relief
sought, the Court construes Morris's Motion as one
brought pursuant to 18 U.S.C. § 3582(c)(2). Because the
relief sought may not be retroactively applied, the Motion
shall be denied.
IS, THEREFORE, ORDERED that Morris's Motion to
modify his sentence, see 18 U.S.C. §