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United States v. Hodo

United States District Court, E.D. Michigan, Southern Division

May 24, 2017

United States of America, Plaintiff,
v.
Tamiko Hodo, Defendant.

          ORDER DENYING: DEFENDANT'S MOTION TO AMEND SENTENCE ORDER (DOC. # 636), DEFENDANT'S MOTION TO REDUCE SENTENCE (DOC. # 637) AND DEFENDANT'S MOTION FOR SENTENCE REDUCTION (DOC. # 643)

          Sean F. Cox U.S. District Judge.

         In Criminal Case Number 11-20752, Defendant Tomiko Hodo (“Defendant”) pleaded guilty, pursuant to a Rule 11 Plea Agreement, to one count of conspiracy to possess with intent to distribute controlled substances. Defendant's Plea Agreement did not contemplate Hodo as a minor or minimal participant under U.S.S.G. § 3B1.2. The Plea Agreement stipulated to an agreed-upon guideline range of 70-87 months.

         On August 16, 2013, this Court sentenced Defendant to a total term of 60 months of imprisonment. (Doc. # 437). On March 23, 2016, this Court entered an “Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2).” (Doc. # 604). In it, the Court granted Defendant's motion under 18 U.S.C. § 3582(c)(2) for a reduction in the term of imprisonment based on a guideline sentencing range that has subsequently been lowered and made retroactive by the Sentencing Commission pursuant to 28 U.S.C. § 994(u). Accordingly, Defendant's previously imposed sentence of imprisonment of 60 months was reduced to 57 months.

         Currently before the Court are three pro se motions filed by Defendant, all of which seek a reduction and/or modification of Defendants' sentence: (1) “Motion to Amend Sentence Order to Split Sentence Pursuant to 18 U.S.C. 3582(c);” (2) “Motion to Amend Sentence Pursuant to U.S.S.G. 3B1.2 Retroactive Minor Role Reduction;” and (3) “Motion for Sentence Reduction Pursuant to U.S.S.G. 3B1.2.” (Doc. # 636, 637, and 643). Each of Defendant's motions shall be DENIED for the reasons stated below.

         ANALYSIS

         Defendant's motions (Doc. # 636, 637, and 643) are all related in that they seek a reduction and/or modification of Defendant's sentence. Section 3582(c) permits a modification of imprisonment in three circumstances: (1) “upon motion of the Director of Bureau of Prisons;” (2) under subsection (c)(1)(B), where such reduction is “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure;” or (3) under subsection (c)(2), based upon some change to the applicable sentencing guidelines. Here, Defendant argues that she is entitled to a sentence reduction based upon a change to the applicable sentencing guidelines. Specifically, Defendant contends that she is entitled to a minor role reduction in her sentence (under Amendment 794)[1] to the sentencing guidelines.

         Amendment 794 was made effective on November 1, 2016 under U.S.S.G. § 3B1.2, and it directs reduction in the offense level based on the defendant's role in the offense: “(a) if the defendant was a minor participant in any criminal activity, decrease by 2 levels” and “in cases falling between (a) and (b), decrease by 3 levels.” The Amendment clarified that culpability is to be determined only by reference to co-conspirators and not to a “typical offender” and the guideline provides a non-exhaustive list of factors for the court to consider in determining whether to apply a mitigating role adjustment.

         To the extent that Defendant brings her motions pursuant to 18 U.S.C. § 3582(c)(2), she is not entitled to relief. Under § 3582(c)(2), the Court has discretion to reduce the sentence “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 ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added).

         Guideline 1B1.10 is a policy statement issued by the Sentencing Commission. Guideline 1B1.10(d) lists the amendments that can be retroactively applied. Amendment 794 is not on that list. A sentence reduction under Amendment 794 is therefore not “consistent with applicable policy statements issued by the Sentencing Commission.” Accordingly, Defendant is not entitled to a sentence reduction/modification under 18 U.S.C. § 3582(c)(2).

         And to the extent that Defendant brings her motions pursuant to 28 U.S.C. § 2255, [2] she fares no better. Defendant presumably cites United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) for the proposition that Amendment 794 applies retroactively. Although courts have applied the guideline retroactively on direct appeal, e.g., United States v. Quintero-Leyva, the Court is not aware of any case that has held that Amendment 794 applies retroactively on collateral review. Klosowski v. United States, 2016 WL 6696023, at *1 (E.D. Mich. Nov. 15, 2016) (“Amendment 794 has not, however, been held to be retroactive on collateral appeal”).

         CONCLUSION

         For the foregoing reasons, Defendant's motions (Doc. # 636, 637, and 643) are DENIED.

         IT IS ...


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