United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's Verified
Motion For Reduction Of Sentence Pursuant To 18 U.S.C. §
3582 (Doc. #164) filed November 13, 2017. For reasons
stated below, the Court dismisses defendant's motion for
lack of jurisdiction.
October 7, 2010, a grand jury charged defendant with
conspiracy to distribute 50 or more grams of cocaine base
(Count 1), being a felon in possession of a firearm (Count 2)
and three counts of distribution of cocaine base (Counts
3-5). Sealed Indictment (Doc. #1). On February 25,
2011, defendant pled guilty to one count of conspiracy to
manufacture, to possess with intent to distribute and to
distribute five grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).
Petition To Enter Plea Of Guilty And Order Entering
Plea (Doc. #29).
initial Presentence Investigation Report (“PSIR”)
found defendant responsible for 41.08 grams of cocaine base
and noted that he qualified for a three-level reduction of
his offense level for acceptance of responsibility.
See PSIR (Doc. #32) filed May 24, 2011, ¶ 19.
Defendant therefore had a total offense level of 25 with a
criminal history category III for a guideline range of 70 to
87 months. See id., ¶ 77.
objected to the drug quantity in the initial PSIR. At the
first sentencing hearing, Lakesha Wesley and Tynisha Mays
testified that defendant's conduct involved a greater
quantity of cocaine base than the PSIR estimated. Defendant
testified that he should be held accountable for less than
41.08 grams. Based on the testimony at the hearing, the Court
ordered an amended PSIR. The amended PSIR held defendant
accountable for 189.78 grams of cocaine base and removed the
reduction for acceptance of responsibility. See
Amended PSIR (Doc. #41) filed June 30, 2011, ¶¶ 21,
34. Defendant had a revised total offense level of 36 with a
criminal history category III for a guideline range of 235 to
240 months. See Transcript Of Motions And Sentencing
(Doc. #106) filed June 5, 2012 at 25, 53. The Court sentenced
defendant to 235 months. The Tenth Circuit affirmed. See
United States v. Lee, 535 F. App'x 677 (10th Cir.
23, 2014, defendant filed a motion to vacate his sentence
under 28 U.S.C. § 2255. On October 15, 2015, the Court
overruled defendant's motion and denied a certificate of
appealability. See Memorandum And Order (Doc. #140).
On March 4, 2016, the Tenth Circuit denied a certificate of
appealability and dismissed his appeal. See United States
v. Lee, 637 F. App'x 525 (10th Cir. 2016).
October 13, 2016, defendant filed a second motion to vacate
his sentence under 28 U.S.C. § 2255. Defendant asserted
that he was entitled to be resentenced in light of Amendment
794 to the Sentencing Guidelines. On October 25, 2016, the
Court dismissed defendant's motion to vacate for lack of
jurisdiction. See Memorandum And Order (Doc. #150).
March 9, 2017, defendant filed a motion under Rule 60(b),
Fed. R. Civ. P., which sought reconsideration of the
Court's order which overruled his first Section 2255
motion, i.e. Memorandum And Order (Doc. #140) filed
October 15, 2015. The Court construed defendant's motion
as both a motion to reconsider under Rule 60(b)(6) and a
second or successive Section 2255 motion. Memorandum And
Order (Doc. #159) filed July 28, 2017 at 13. The Court
overruled in part and dismissed in part. Id.
Subsequently, defendant moved to amend his Rule 60(b) motion
and sought reconsideration of the order which overruled his
Rule 60(b) motion. The Court overruled both motions. See
Memorandum And Order (Docs. ##162, 163) filed August 18,
2017 and November 06, 2017.
November 13, 2017, defendant filed his Verified Motion
For Reduction Of Sentence Pursuant To 18 U.S.C. §
3582 (Doc. #164), which seeks a sentence reduction under
Amendment 794 to the Sentencing Guidelines. In particular,
defendant asserts that the Court should reduce his sentence
because the Court based his sentence on unreliable testimony
and he played a minor role in the conspiracy.
seeks relief under Amendment 794 to the Sentencing
Guidelines, which became effective November 1, 2015. A
district court has authority to reduce the sentence of a
defendant who has been sentenced to a prison term based on a
sentencing range that the United States Sentencing Commission
has subsequently lowered pursuant to 28 U.S.C. § 994(o)
“if such a reduction is consistent with applicable
policy statements issued by the Commission.” 18 U.S.C.
§ 3582(c)(2). Amendment 794 provides additional guidance
to district courts in determining when a mitigating role
adjustment applies under Section 3B1.2 of the Guidelines.
See Amendment 794, Supp. to App. C (Nov. 1, 2015).
Unless and until the United States Sentencing Commission
specifically designates the amendment for retroactive
application, the Court has no authority to apply the
amendment to defendant's case under Section 3582(c)(2).
See 18 U.S.C. § 3582(c)(2) (court may reduce
sentence where consistent with policy statements of
Commission); U.S.S.G. § 1B1.10 (if amendment not listed
in subsection 1B1.10(d), reduction not consistent with policy
statement). Because the Court lacks authority to
modify a sentence under Section 3582(c)(2) based on an
amendment to the Guidelines which the Sentencing Commission
has not designated as retroactive, the Court overrules
defendant's motion. See Torres-Aquino, 334 F.3d
IS THEREFORE ORDERED that defendant's
Verified Motion For Reduction Of Sentence Pursuant To 18
U.S.C. § 3582 (Doc. #164) filed November ...