United States District Court, E.D. Michigan, Southern Division
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)
F. Cox U.S. District Judge.
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.
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
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.
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) to the sentencing
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.
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).
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).
the extent that Defendant brings her motions pursuant to 28
U.S.C. § 2255,  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”).
foregoing reasons, Defendant's motions (Doc. # 636, 637,
and 643) are DENIED.