United States District Court, D. Minnesota
K. Bell, Esq., Assistant United States Attorney, Minneapolis,
MN, on behalf of Plaintiff.
C. Shelton, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a determination of Defendant Victor C. Shelton's
(“Shelton”) Motion for Reduction of Sentence
Pursuant to 18 U.S.C. § 3582(c)(2) [Docket No. 536].
Shelton requests a reduction of his sentence in light of
Amendment 794 to the United States Sentencing Guidelines. For
the reasons set forth below, Shelton's Motion is denied.
April 6, 2011, Shelton pled guilty to one count of aiding and
abetting a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). See
Minute Entry, Apr. 6, 2011 [Docket No. 307]. On September 12,
2011, the Court sentenced Shelton to a term of imprisonment
of 92 months to be followed by a three-year term of
supervised release. Sentencing J. [Docket No. 387]. The
sentence was a downward variance from the advisory guideline
range of 110 to 120 months for his total offense level of 25.
See Statement Reasons at 1. At sentencing, Shelton
did not argue for a minor role reduction. His sentencing
memorandum states that he was an “average participant
in the underlying conduct.” Position Def. Respect
Sentencing [Docket No. 375] at 2.
August 15, 2016, Shelton filed the present Motion requesting
that his sentence be reduced from 92 months to 63 months
based on Amendment 794, which became effective on November 1,
2015. Amendment 794 clarified the circumstances under which a
defendant can receive a reduction as a minor role participant
under U.S.S.G. § 3B1.2. See Sentencing
Guidelines for United States Courts, 80 FR 25782-01, 2015 WL
1968941, at *25792-93 (May 5, 2015). Shelton seeks to have
Amendment 794 retroactively applied to his sentence.
Motion is premised upon 18 U.S.C. § 3582(c)(2), which
in 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
pursuant to 28 U.S.C. 994(o), . . . the court may reduce the
term of imprisonment, after considering the factors set forth
in section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). As the text of the statute makes
clear, a court is only authorized to reduce the term of
imprisonment “if such reduction is consistent with the
applicable policy statements issued by the Sentencing
applicable policy statement for § 3582(c)(2) is U.S.S.G.
§ 1B1.10. See Dillon v. United States, 560 U.S.
817, 826 (2010). This guideline provides that “[a]
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 . . . [n]one
of the amendments listed in subsection (d) [of § 1B1.10]
is applicable to the defendant.” U.S.S.G.
§1B1.10(a)(2)(A). In turn, subsection (d) of
§1B1.10 lists the specific amendments covered under that
policy statement. See § 1B1.10(d). Amendment
794 is not included in the list. See id. Thus, a
sentence reduction based on Amendment 794 is not consistent
with § 1B1.10 and therefore is not authorized under
§ 3582(c). See United States v. Bazaldua, No.
06-100, 2016 WL 5858634, at *1 (D. Minn. Oct. 5, 2016)
(stating Amendment 794 “is not among those amendments
for which collateral relief may be sought under §
3582(c)”); United States v. White, No. 14-27,
2016 WL 4523288, at *2 (W.D. Va. Aug. 26, 2016) (denying
request for minor role reduction under § 3582(c)(2)
because Amendment 794 is not listed in § 1B1.10 as
retroactively applicable); United States v.
Gillispie, No. 12-29, 2016 WL 5402781, at *2 (E.D. Ky.
Aug. 26, 2016) (same).
even if Congress had made Amendment 794 retroactive by
including it in § 1B1.10(d), Shelton has not set forth
any facts or argument to demonstrate that he would have been