United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
October 28, 2014, defendant pled guilty to armed bank robbery
and to aiding and abetting brandishing of a firearm during
and in relation to a crime of violence. On January 27, 2015,
the Court sentenced defendant to 114 months in prison. This
matter is before the Court on defendant's pro se
Motion For Modification Or Reduction Of Sentence Pursuant
To 18 U.S.C. § 3582(c)(2) And Amendment 794 (Doc.
#109) filed June 25, 2018, which the Court construes as a
second or successive motion to vacate sentence under 28
U.S.C. § 2255. For reasons stated below, the Court
dismisses defendant's motion for lack of jurisdiction.
March 19, 2014, a grand jury returned an indictment which
charged defendant with armed bank robbery in violation of 18
U.S.C. §§ 2113(a), 2113(d) and 2 (Count 1) and
aiding and abetting, knowingly and intentionally brandishing
a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. §§ 924(c) and 2 (Count 2).
Indictment (Doc. #20). On October 28, 2014,
defendant pled guilty to both counts. In exchange for
defendant's guilty plea, the government agreed to
recommend a sentence at the low end of the applicable
guideline range, a two-level reduction for acceptance of
responsibility and a one-level reduction for entering an
early plea. Plea Agreement (Doc. #66), ¶ 4. The
Court accepted the government's recommendations and
sentenced defendant to 114 months in prison - the low end of
his sentencing range. Judgment In A Criminal Case
(Doc. #87) filed January 29, 2015.
October 10, 2017, defendant filed a motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserted that
the Court erred when it failed to adopt Rosemond v.
United States, 134 S.Ct. 1240 (2014), and accepted his
guilty plea to aiding and abetting under Count 2. Motion
Under 28 U.S.C. § 2255 (Doc. #100) at 7-8. On
January 23, 2018, the Court overruled defendant's Section
2255 motion and denied a certificate of appealability.
See Memorandum And Order (Doc. #107).
25, 2018, defendant filed a motion to modify or reduce his
sentence under 18 U.S.C. § 3582(c)(2). Liberally
construed, defendant's motion argues that the Court (1)
should reduce his sentence under Amendment 794 to the
Sentencing Guidelines and (2) reduce his sentence or vacate
his conviction under Count 2.
first 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 term of imprisonment
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 the United States Sentencing
Commission specifically designates the amendment for
retroactive application, however, 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(c), reduction not consistent with
policy statement). While certain “clarifying”
amendments may be applied retroactively in determining
whether the district court correctly sentenced defendant
under the Guidelines, defendant must seek relief based on
such amendments as a challenge to his sentence on direct
appeal or in a motion under Section 2255. United States
v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003).
The Court lacks authority to modify a sentence under Section
3582(c)(2) based on a “clarifying” amendment to
the Guidelines which the Sentencing Commission has not
designated as retroactive. See id.
also seeks a reduced sentence on Count 2 in light of recent
Supreme Court decisions. Motion For Modification Or
Reduction Of Sentence Pursuant To 18 U.S.C. § 3582(c)(2)
And Amendment 794 (Doc. #109) at 4 (citing Johnson
v. United States, 135 S.Ct. 2551 (2015); Welch v.
United States, 136 S.Ct. 1257 (2016); Mathis v.
United States, 136 S.Ct. 2243 (2016); and Sessions
v. Dimaya, 138 S.Ct. 1204 (2018)). None of the cited
decisions provide defendant a jurisdictional gateway to
relief under Section 3582(c)(2). Defendant essentially asks
the Court to vacate his 84-month sentence on Count 2. See
Motion For Modification Or Reduction Of Sentence Pursuant To
18 U.S.C. § 3582(c)(2) And Amendment 794 (Doc.
#109) at 4 (aiding and abetting charges do not qualify as
crimes of violence); id. (noting he had
“little to no knowledge as to the crime being committed
to aid and abet the primary individual, nor any violence
being committed by the Petitioner to warrant a crime of
violence”); id. at 5 (requesting reduction
from 114 to 30 months based on mitigating role).
Defendant's claim for relief in substance and effect
asserts federal grounds for relief from his underlying
conviction and sentence. Because defendant has previously
sought relief under Section 2255, the Court construes his
claim as part of a second or successive Section 2255 motion.
See United States v. Wetzel-Sanders, 805 F.3d 1266,
1268 (10th Cir. 2015) (motion which attacks judgment of
conviction or sentence when prior motion already did so
constitutes second or successive motion); Spitznas v.
Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (motions
that assert defect outside context of habeas proceeding
constitute second or successive petitions).
authority to consider either of defendant's claims under
Section 3582(c), the Court construes defendant's motion
to modify and reduce sentence as a second or successive
motion under Section 2255. As noted, defendant previously
filed a Section 2255 motion. Pursuant to the Antiterrorism
and Effective Death Penalty Act of 1996, defendant may not
file a second or successive motion pursuant to Section 2255
unless he first applies to the appropriate court of appeals
for an order authorizing the district court to consider the
motion. See 28 U.S.C. §§ 2244(b)(3),
2255(h). If defendant files a second or successive motion
without first seeking the required authorization, the
district court may (1) transfer the motion to the appellate
court if it determines that it is in the interest of justice
pursuant to 28 U.S.C. § 1631 or (2) dismiss the motion
for lack of jurisdiction. See In re Cline, 531 F.3d
1249, 1252 (10th Cir. 2008). The Court has discretion in
deciding whether to transfer or dismiss without prejudice.
Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th
Cir. 2006). In making this decision, the Court considers
whether the claims would be time-barred if filed anew in the
proper forum, whether the claims are likely to have merit and
whether the claims were filed in good faith or if, on the
other hand, it was clear at the time of filing that the Court
lacked jurisdiction. Id. at 1223 n.16.
it appears that defendant's claims do not satisfy the
authorization standards under Section 2255, the Court
overrules the motion rather than transferring it to the Tenth
Circuit. See In re Cline, 531 F.3d at 1252 (district
court may refuse to transfer motion which fails on its face
to satisfy authorization standards of Section 2255(h));
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999) (waste of judicial resources to require transfer of
frivolous, time-barred cases). A second or successive motion
under 28 U.S.C. § 2255 may be filed in the district
court if the court of appeals certifies that the motion is
based on (1) newly discovered evidence that if proven and
viewed in light of the evidence as a whole would establish by
clear and convincing evidence that no reasonable factfinder
would have found defendant guilty of the offense or (2) a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. 28 U.S.C. § 2255(h).
defendant relies on an amendment to the Sentencing Guidelines
and several recent Supreme Court decisions. Defendant has not
asserted “newly discovered evidence” or shown
that the Supreme Court has made retroactive a new rule of
constitutional law that was previously
unavailable. Accordingly, the Court declines to
transfer the present motion to the Court of Appeals.
IS THEREFORE ORDERED that defendant's pro se
Motion For Modification Or Reduction Of Sentence
Pursuant To 18 U.S.C. § 3582(c)(2) And Amendment
794 (Doc. #109) filed June 25, 2018, which the Court
construes as a second or successive motion to vacate sentence
under 28 U.S.C. § 2255, is DISMISSED for lack of
IS FURTHER ORDERED that a certificate of
appealability as to the ruling on defendant's ...