United States District Court, D. Nebraska
E. STROM, SENIOR JUDGE
matter is before the Court on the motion of the defendant,
Johnny Ray Butler, filed pursuant to 18 U.S.C. §
3582(c)(2) for modification of sentence by a person in
federal custody (Filing No. 1307). After review of
the motion and the relevant law, the Court finds that the
motion should be denied.
1993, Butler was convicted of conspiring to distribute or to
possess with the intent to distribute cocaine or crack
cocaine, engaging in a continuing criminal enterprise (CCE),
and money laundering. Butler was sentenced to life in prison.
Butler's conviction and sentence were affirmed on direct
appeal. United States v. Johnson, 28 F.3d 1487, 1501
(8th Cir. 1994), cert. denied, 513 U.S. 1098, 115
S.Ct. 768, 130 L.Ed.2d 664 (1995).
present motion is another attempt to challenge his sentence.
See Butler v. Banks, No. CV 11-05487-GAF(SP), 2011
WL 3476817 at *1-2 (C.D. Cal., August 5, 2011)(detailing
Butler's challenges to his conviction and sentence up to
August 2011); see also Filing No. 1190 and
Filing No. 1241. Butler asserts that he is seeking
modification of his life sentence based upon amendments to
the United States Sentencing Guidelines (the
“Guidelines”) (Filing No. 130 at 1-2). However,
Butler's life sentence was imposed pursuant to 21 U.S.C.
§ 848(b), not pursuant to the Guidelines. See
Filing No. 765 (“A life sentence is mandated by 21
U.S.C. § 848(b) in view of the Court's findings set
forth in its sentencing memorandum” (Filing No.
construed, Butler's chief argument for a modification of
his sentence attacks the Court's determination of the
quantity of cocaine base attributable to him. See
Filing No. 1307 at 2-3. Butler asserts that the
quantity of cocaine base attributable to him should have been
determined by the jury and proven beyond a reasonable doubt.
Butler cites Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v.
United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) to
support the proposition that the Court's determination of
quantity attributable to Butler is constitutionally
impermissible. See Filing No. 1307 at 3.
on the statutory scheme upon which Butler was sentenced and
the nature of his argument, this motion is better
characterized as one under 28 U.S.C. § 2255.
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). This is not Butler's first
motion pursuant to § 2255. A petitioner seeking to file
a second or successive § 2255 motion challenging their
conviction or sentence must first obtain circuit court
certification. 28 U.S.C. § 2255(h). Because Butler has
not received approval from the United States Court of Appeals
for the Eighth Circuit to file a second or successive §
2255 motion, the Court lacks jurisdiction over his claims.
See, United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000); United States v. Alvarez-Ramirez, 128
F.Supp.2d 1265, 1267 (C.D. Cal. 2001).
the Court had jurisdiction to address Butler's collateral
attack on his sentence, the law precludes the modification of
his sentence. Prior to the Supreme Court's decision in
Alleyne, a judge was permitted “to find, by a
preponderance of the evidence, any fact that increased the
mandatory minimum sentence for a crime.” Walker v.
United States, 810 F.3d 568, 573 (8th Cir. 2016) (citing
Harris v. United States, 536 U.S. 545, 568-69, 122
S.Ct. 2406, 153 L.Ed.2d 524 (2002)). In Alleyne, the
Supreme Court overruled Harris, holding “that
any fact that increases the mandatory minimum is an
‘element' that must be submitted to the
jury.” Alleyne, 133 S.Ct. at 2156. The Eighth
Circuit, as well as other circuits, have held that “if
Alleyne announced a new constitutional rule, that
rule does not apply retroactively on collateral
review.” See Walker, 810 F.3d at 575.
the quantity of drugs attributable to Butler under the
relevant statutory scheme at the time he was sentenced, as
well as under the current statutory scheme, both mandate a
life sentence be imposed. At the time Butler was sentenced,
the statutory scheme mandating a life sentence required a
minimum of 1.5 kilograms cocaine base. See 21 U.S.C.
§ 848(b)(2)(A) and 21 U.S.C. § 841(b)(1)(B) (1993).
Currently, the statutory scheme mandating a life sentence
requires a minimum of 8.4 kilograms of cocaine base.
See 21 U.S.C. § 848(b)(2)(A) and 21 U.S.C.
§ 841(b)(1)(B) (2016). Butler was found to be
accountable for at least 42.8 kilograms of cocaine base
(Filing 732 at 2-3). Accordingly, under the statutory scheme,
both in 1993 and today, Butler is subject to a mandatory life
foregoing reasons, Butler's motion for a modification of
sentence (Filing No. 1307) will be denied. A
separate order will be entered in accordance with this
 A mandatory life sentence is mandated
for an individual meeting the elements of engaging in a CCE
where the violation involves a quantity of at least 300 times
the quantity of a substance described in § ...