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 Modification of Term of Imprisonment
Pursuant 18 U.S.C. § 3582(c)(2)" (filing 257) and
subsequent correspondence (filing 266) that the Court has
filed as a supplement to that motion. The defendant's
motion will be denied.
defendant's motion asks for a sentence reduction pursuant
to § 3582(c)(2), which provides that a sentencing court
may reduce a term of imprisonment that was "based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission," and Hughes v. United
States, in which the Supreme Court held that a
sentencing imposed pursuant to a binding Fed. R. Crim. P.
11(c)(1)(C) plea agreement "is 'based on' the
defendant's Guidelines range so long as that range was
part of the framework the district court relied on in
imposing the sentence or accepting the agreement." 138
S.Ct. 1765, 1775 (2018). But Hughes does not apply
here, because the defendant was not sentenced pursuant to a
Rule 11(c)(1)(C) plea agreement. See filing 130.
the defendant was sentenced to 120 months' imprisonment
for conspiring to distribute 500 grams or more of a
methamphetamine mixture, and 18 months' imprisonment for
illegal reentry, sentences to be served concurrently-meaning
that the defendant was sentenced to the statutory mandatory
minimum. Filing 189 at 2; see 21 U.S.C. §
841(b)(1)(A)(viii). And the defendant has not identified any
Guidelines amendment that would authorize the Court to
resentence the defendant below the mandatory minimum
sentence. See United States v. Theeler, 633
Fed.Appx. 358, 359 (8th Cir. 2016); United States v.
McGuire, 524 F.3d 891, 892 (8th Cir. 2008); United
States v. Peters, 524 F.3d 905, 907 (8th Cir. 2008).
defendant's supplemental filing (filing 266) more
specifically asks the Court for a two-point reduction in the
offense conduct for being a minor participant in the offense.
But the defendant already got that reduction-the presentence
report found the defendant to be a minor participant, and the
Court adopted the presentence report without change. Filing
187 at 12; filing 190 at 1. The defendant also asks the Court
about safety valve eligibility, but the Court already
explained that the defendant was not eligible for the safety
valve because he had not truthfully provided the government
with all the information and evidence he had concerning the
offense. Filing 238 at 5-6; see 18 U.S.C. §
defendant also asks the Court about his eligibility for
"the new first offender guidelines." But there are
least three problems with that. The first is that the Court
cannot find any adopted amendment to the sentencing
guidelines matching the defendant's description.
See United States Sentencing Commission, Adopted
Amendments (Effective November 1, 2018), (April 30,
Nor could there be such an amendment: when a statute and
guideline conflict, the statute controls. United States
v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995). The
Sentencing Commission can't override a statutory
mandatory minimum sentence. See id.
at least at this point, none of the adopted amendments have
been made retroactive. 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 U.S.S.G. § 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
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). 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). And no amendment to §
1B1.10(d) has been adopted. See Adopted Amendments
(Effective November 1, 2018) at 47.
the only adopted amendment that addresses "first
offenders"- even if it was to be retroactive-would not
help the defendant. A new application note has been adopted
for U.S.S.G. § 5C1.1 relating to "Alternatives to
Incarceration for Nonviolent First Offenders," providing
in relevant part that "[i]f the defendant is a
nonviolent first offender and the applicable guideline range
is in Zone A or B of the Sentencing Table, the court should
consider imposing a sentence other than a sentence of
imprisonment." Adopted Amendments (Effective
November 1, 2018) at 75. But a total offense level of
29, even with a criminal history category of I, see
filing 190 at 1, put the defendant in Zone D of the
Sentencing Table. And based on his convictions, the defendant
was ineligible for probation. See21 U.S.C. §
841(b)(1)(A); see also 18 U.S.C. § 3561(a)(3).
there are no adopted amendments to the sentencing guidelines
that apply to the defendant. The defendant also asks the
Court about a sentence reduction pursuant to Fed. R. Crim. P.
35(b)-but whether to seek a reduction pursuant to Rule 35(b)
is up to the government, and the Court cannot review that
decision just ...