United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the defendant's motion for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
(filing 73). The defendant's motion will be denied.
defendant was convicted, pursuant to jury verdict, of
receiving child pornography in violation of 18 U.S.C. §
2252A(a)(2). Filing 59 at 1. The presentence report assessed
a 5-level enhancement to the defendant's offense level
based on the finding that the defendant's use of
peer-to-peer file-sharing technology meant that he had
distributed child pornography expecting to receive a thing of
value within the meaning of U.S.S.G. § 2G2.2(b)(3)(B).
Filing 57 at 7. The defendant objected to that enhancement.
Filing 51. The Court sustained the objection in part,
assessing only a 3-level enhancement. Filing 55; filing 60 at
1; see United States v. Abraham, 944 F.Supp.2d 723,
734-35 (D. Neb. 2013). The Court calculated a total offense
level of 33 and an advisory guidelines range of 135 to 168
months, and imposed a below-guidelines sentence of 90
months' imprisonment. Filing 59 at 2; filing 60 at 1.
defendant moves for a sentence reduction pursuant to §
3582(c)(2), which provides that the Court may modify a term
of imprisonment if the "defendant . . . has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission." The defendant relies on Amendment 801 to
the Sentencing Guidelines, which amended § 2G2.2: that
section now provides that the 5-level increase is warranted
"[i]f the defendant distributed in exchange for any
valuable consideration, " and
"The defendant distributed in exchange for any valuable
consideration" means the defendant agreed to an exchange
with another person under which the defendant knowingly
distributed to that other person for the specific purpose of
obtaining something of valuable consideration from that other
person, such as other child pornographic material,
preferential access to child pornographic material, or access
to a child.
§ 2G2.2(b)(3)(B) and cmt. n.1. The defendant argues that
Amendment 801 applies retroactively, and that under the
amended guideline, the enhancement would not have been
applicable. Filing 73 at 3.
are two problems with the defendant's argument. The first
is that unless the defendant received a below-guidelines
sentence "pursuant to a government motion to reflect the
defendant's substantial assistance to authorities, "
the Court cannot reduce the defendant's term of
imprisonment to a term that is less than the minimum of the
amended guideline range. § 1B1.10(b)(2)(A).
sentence reduction pursuant to § 3582(c)(2) is not a
resentencing: § 3582(c)(2) authorizes "only a
limited adjustment to an otherwise final sentence and not a
plenary resentencing proceeding." Dillon v. United
States, 560 U.S. 817, 826 (2010). The Court is
constrained by the Commission's statements dictating by
what amount the sentence of a prisoner serving a term of
imprisonment affected by an amendment may be reduced.
Id. Because § 3582(c)(2) authorizes a reduction
only if it is consistent with policy statements
issued by the Sentencing Commission, the Court must determine
that a reduction is consistent with § 1B1.10 before it
may consider whether the authorized reduction is warranted.
Dillon, 560 U.S. at 826; see, United
States v. Higgins, 584 F.3d 770, 772 (8th Cir. 2009);
United States v. Starks, 551 F.3d 839, 842-43 (8th
here, § 1B1.10 does not permit a reduction. The
defendant's Guidelines range at sentencing was determined
to be 135 to 168 months, based on a total offense level of 33
and criminal history category I. Filing 60 at 1. But the
Court varied downward at the defendant's request and
imposed a sentence of 90 months. Filing 59 at 2; filing 60 at
2-3. Even if the Court assumes that no distribution
enhancement would be imposed under the amended §
2G2.2(b)(3)(B), that would only reduce the offense level by
the 3 levels that the Court imposed at sentencing, resulting
in an offense level of 30 and an amended Guidelines
imprisonment range of 97 to 121 months. The defendant's
90-month sentence is still below the amended Guidelines
range, and cannot be reduced pursuant to §
other problem with the defendant's argument is that the
Sentencing Commission has not made Amendment 801 retroactive.
"If the Commission reduces the term of imprisonment
recommended in the guidelines applicable to a particular
offense or category of offenses, it shall specify in what
circumstances and by what amount the sentences of prisoners
serving terms of imprisonment for the offense may be
reduced." 28 U.S.C. § 994(u). In other words, the
retroactivity decision is left to the Commission's
discretion. United States v. Hernandez, 18 F.3d 601,
602 (8th Cir. 1994). And because a sentence
reduction pursuant to § 3582(c)(2) must be consistent
with the Commission's policy statements, only amendments
enumerated in § 1B1.10(d) may be applied retroactively.
Hernandez, 18 F.3d at 602; United States v.
Dowty, 996 F.2d 937, 938-39 (8th Cir.
1993). Amendment 801 is not such an enumerated
amendment. § 1B1.10(d). Accordingly, IT IS ORDERED that
the defendant's motion for a sentence reduction (filing
73) is denied.
 The defendant cites United States
v. Leon-Alvarez,532 F.3d 815 (8th Cir. 2008), for the
proposition that "[c]larifying amendments to the
Guidelines which do not make substantive changes may be given
retroactive effect." Filing 73 at 3. But Amendment 801
made substantive changes to the text of §
2G2.2(b)(3)(B). And in any event, what the defendant is
citing is not the Eighth Circuit's holding in
Leon-Alvarez: it is a concurring opinion that, in turn,
cited United States v. Douglas, 64 F.3d 450, 453
(8th Cir. 1995), for the proposition that clarifying changes
or amendments to the Guidelines operate retroactively, even
if not designated as such by the Commission in § 1B1.10.
Leon-Alvarez, 532 F.3d at 821 (Bright, J.
concurring). But the issue in Douglas was the application of
the one-book rule to amended guidelines commentary-the
amendment at issue in Douglas actually was enumerated in
§ 1B1.10. Douglas, 64 F.3d at 451, ...