United States District Court, S.D. Indiana, Terre Haute Division
Jane Magnus-Stinson, Judge
March 15, 2011, a jury found Defendant Susie Smith guilty of
conspiracy to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine -
a violation of 21 U.S.C. § 846. [Filing No. 842 at 1-3.]
On July 6, 2011, this Court sentenced Ms. Smith to 151 months
imprisonment to be followed by five years of supervised
release. [Filing No. 1045 at 2-3.] Presently pending before
the Court is Ms. Smith's Motion for Modification or
Reduction of Sentence. [Filing No. 1551.] For the reasons
that follow, the Court DENIES Ms. Smith's motion.
September 13, 2016, Ms. Smith filed the pending motion,
requesting a modification or reduction of her sentence
pursuant to 18 U.S.C. § 3582(c)(2). [Filing No. 1551.]
Ms. Smith states that she was sentenced at an offense level
of 40 and a criminal history category of 1. [Filing No. 1551
at 1.] She requests that the Court follow the dictates of
Amendment 794 to the Sentencing Guidelines, reduce her total
offense level to 36, and impose a more lenient sentence.
[Filing No. 1551.]
response, the Government argues that Ms. Smith is not
eligible for a reduction pursuant to Amendment 794 because:
(1) she has already received a reduction for her role in the
offense and (2) Amendment 794 does not apply retroactively.
[Filing No. 1555 at 2-3.] The Government contends
that Ms. Smith received a reduction for her mitigated role in
the offense and was sentenced at a total offense level of 34
- not a total offense level of 40 as claimed by Ms. Smith in
her motion. [Filing No. 1555 at 2-3.] Further, the
Government argues that, even if Ms. Smith had not already
received a reduction for her mitigated role in the offense,
she would not be entitled to relief under Amendment 794
because the Sentencing Commission did not make Amendment 794
retroactive for collateral review. [Filing No. 1555 at
judgment of conviction that includes [a sentence of
imprisonment] constitutes a final judgment' and may not
be modified by a district court except in limited
circumstances.” Dillon v. United States, 560
U.S. 817, 824 (2010) (citing 18 U.S.C. § 3582(b)).
Section 3582(c)(2) provides an exception:
[I]n the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . .
the court may reduce the term of imprisonment . . . if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
reduction in the defendant's term of imprisonment is not
consistent with this policy statement and therefore is not
authorized under 18 U.S.C. 3582(c)(2) if - (A) None of the
amendments listed in subsection (d) is applicable to the
defendant . . . .” U.S.S.G. § 1B1.10(b).
794 to the Sentencing Guidelines clarifies the commentary to
the Sentencing Guidelines with regard to reductions for the
defendant's role in the offense, allowing more defendants
to qualify for the reduction. U.S.S.G. App. C. Amend. 794;
see also United States v. Quintero-Leyva,
823 F.3d 519, 522-23 (9th Cir. 2016). However, the Court
finds that Ms. Smith has indeed already received a reduction
for her role in the offense. Although the Presentence
Investigation Report recommended that Ms. Smith should not
receive a reduction for a mitigating role in the offense,
[Filing No. 973 at 9], resulting in a total offense level of
40, the Court declined to follow that recommendation and
assigned Ms. Smith a total offense level of 34, [Filing No.
1046 at 1]. The Court specifically noted that it
“determined the defendant is eligible for a mitigating
role adjustment of 2 levels, pursuant to 3B1.2(b).”
[Filing No. 1046 at 1.] Therefore, Amendment 794 does not
convey any further benefit to Ms. Smith.
the Sentencing Commission did not make Amendment 794
retroactive for collateral review. Helmer v. United
States, 2016 WL 5118816 (S.D. Ill. 2016); see also
U.S.S.G. § 1B1.10(d) (listing covered amendments for
retroactivity). Therefore, even if Ms. Smith had not
already received a reduction for her role in the offense, she
would not be entitled to relief under Amendment 794.
the Court finds that Ms. Smith has already received a
reduction for her role in the offense (so Amendment 794 does
not offer her any further relief), and since Amendment 794 is
not retroactive for collateral review, Ms. Smith's Motion
for Modification or Reduction of Sentence, [Filing No.
1551], is DENIED.
U.S.S.G § 1B 1.10(d)
states that the “Amendments covered by this policy
statement are listed in Appendix C as follows: 126, 130, 156,
176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488,
490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as
amended by 711, 715, 750 (parts A and C only), and 782
(subject to subsection (e)(1)).” Because Amendment 794
is absent from the list reflected in U.S.S.G. ...