United States District Court, D. Minnesota
RICHARD NELSON UNITED STATES DISTRICT JUDGE
matter is before the Court on four motions of defendant Derek
Edward Benedict. First, Benedict seeks a reduction in
sentence pursuant to 18 U.S.C. § 3582(c). See
ECF No. 569. Second, Benedict requests appointment of counsel
in pursuing relief under § 3582(c). See ECF No.
573. Third, requests to proceed in forma pauperis
(“IFP”) during the § 3582(c) proceedings and
to be excused from any filing-fee obligations. See
ECF No. 574. Fourth, Benedict requests production of
transcripts at government expense in anticipation of
unrelated proceedings under 28 U.S.C. § 2255. All four
motions are denied for the reasons explained below.
was convicted after a jury trial on charges of conspiracy to
commit bank burglary, aiding and abetting bank larceny,
conspiracy to steal controlled substances, aiding and
abetting burglary involving controlled substances, and aiding
and abetting interstate transportation of stolen property. At
sentencing in April 2015, the Court concluded that Benedict
was a career offender as that term was then defined by the
United States Sentencing Guidelines and imposed a 150-month
term of imprisonment - a variance upward from the 100-125
months recommended for a defendant (such as Benedict) with an
offense level of 24 and a criminal-history category of VI.
See U.S.S.G. § 4B1.2 (2014).
the pendency of Benedict's direct appeal, the Supreme
Court held in Johnson v. United States that the
residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B), ran
afoul of “the Constitution's prohibition of vague
criminal laws.” 135 S.Ct. 2551, 2555 (2015).
Johnson was not directly relevant to Benedict's
case - he had not been convicted under the ACCA - but the
career-offender enhancement pursuant to which Benedict had
been sentenced included a residual clause identical to that
struck down in Johnson. On direct appeal, Benedict
contended that the application of the career-offender
enhancement had therefore been unlawful.
the Eighth Circuit concluded that, even assuming
Johnson applied to the Sentencing Guidelines,
Benedict nevertheless was correctly found to be a career
offender because his prior convictions for commercial
burglary also qualified as enumerated offenses under the
version of § 4B1.2 then in effect. See United States
v. Benedict (“Benedict I”), 815
F.3d 377, 385-86 (8th Cir. 2016) (citing United States v.
Stymiest, 581 F.3d 759 (8th Cir. 2009)). Benedict then
sought, and was granted, en banc review on the
question of whether his burglary offense qualified as an
enumerated offense under the sentencing guidelines.
Benedict I was accordingly vacated.
that same time, the Supreme Court granted a writ of
certiorari in Beckles v. United States on the
question of whether the residual clause of the career-
offender enhancement of the Sentencing Guidelines, like the
residual clause of the ACCA, was also void for vagueness, as
the Eighth Circuit had assumed without deciding in
Benedict I. The Eighth Circuit stayed Benedict's
appeal pending the Supreme Court's decision in
Beckles, which came in March 2017: “advisory
Guidelines are not subject to vagueness challenges.”
Beckles v. United States, 137 S.Ct. 886, 890 (2017).
The stay was lifted and Benedict's appeal was returned to
the original panel for disposition. A few weeks later, the
Eighth Circuit again affirmed Benedict's sentence, this
time finding, consistent with Beckles, that the
residual clause of the career-offender enhancement remained
valid at the time of his sentencing and that his prior
burglary convictions qualified as predicate offenses under
that clause. See United States v. Benedict
(“Benedict II”), 855 F.3d 880, 890 (8th
this took place, the United States Sentencing Commission
amended the Sentencing Guidelines to remove the residual
clause of the career-offender enhancement, effective August
1, 2016. See Sentencing Guidelines Amendment 798.
That same amendment also removed “burglary of a
dwelling” from the list of enumerated offenses.
Id. If sentenced under the Guidelines now in effect
(or the version in effect at the time of Benedict
II), Benedict would no longer qualify as a career
offender under § 4B1.2.
§ 3582(c), a district court may modify a term of
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 . . .
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
argues that because he would no longer be a career offender
if sentenced today, his sentencing range has subsequently
been lowered by the Sentencing Commission through Amendment
798, and his sentence may be reduced pursuant to §
is incorrect. Only if a sentence “reduction is
consistent with applicable policy statements issued by the
Sentencing Commission” may such a reduction be applied
under § 3582(c). Among the policy statements of the
Sentencing Commission is that only particular, enumerated
amendments to the Sentencing Guidelines qualify a defendant
for relief under § 3582(c). Amendment 798 is not among
those enumerated amendments. See U.S.S.G. §
1B1.10; accord United States v. Strevig, 663 Fed.
App'x 908, 912 (11th Cir. 2016) (“The Sentencing
Commission, however, has not made Amendment 798 retroactive
to individuals sentenced prior to the effective date of the
Amendment.”). By its plain terms, then, § 3582(c)
excludes Benedict from relief.
contends that his sentence may nevertheless be reduced
because Amendment 798 took effect while his case remained
pending on direct appeal - that is, before his sentence had
become final. Section 3582(c), however, makes no distinction
between cases where the relevant guidelines range has been
lowered during, rather than after, direct appeal. Had
Amendment 798 applied retroactively, that amendment could be
invoked in support of a motion under § 3582(c)
regardless of when that amendment took effect, so long as the
amendment took effect after sentencing. See, e.g.,
United States v. Lawin, 779 F.3d 780, 781-82 (8th
Cir. 2015). Conversely, if a guidelines amendment cannot be
invoked retroactively, a defendant cannot avail himself of
relief under § 3582(c) regardless of when that
guidelines amendment took effect (again, assuming the
amendment took effect after sentencing). ...