United States District Court, E.D. Michigan, Southern Division
D. Borman, District Judge.
REPORT AND RECOMMENDATION
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.
17, 2013, Defendant Charlene Jansen pled guilty to one count
of Conspiracy to Manufacture Methamphetamine, 21 U.S.C.
§§ 841(a)(1) and 846. On October 1, 2013 she was
sentenced to a term of 60 months imprisonment, to be followed
by a three term of supervised release. Before the Court are
her motion for reduction of sentence pursuant to 18 U.S.C.
§ 3553(a)(2)(D) [Doc. #276], and her motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255
[Doc. #291], which have been referred for a Report and
Recommendation under 28 U.S.C. § 636(b)(1)(B). For the
reasons that follow, I recommend that both motions be DENIED.
pled guilty, pursuant to a Rule 11 plea agreement, on June
17, 2013. Judgment of sentence was entered on October 9, 2013
[Doc. #219]. The Sentencing Guidelines range from the
Sentencing Table was 292 to 365 months, which exceeded the
statutory maximum; therefore the Guidelines range was 240
months. Prior to sentencing, the government filed a motion
for downward departure under § 5K1.1 of the Sentencing
Guidelines [Doc. #208], which the Court granted, sentencing
Defendant to 60 months.
September 17, 2014, Defendant filed a motion for sentence
reduction under 18 U.S.C. § 3582(c)(2) [Doc. #236],
which the Court denied on November 30, 2015 [Doc. #269]. On
February 1, 2016, she filed a motion for reduction of
sentence pursuant to 18 U.S.C. § 3553(a)(2)(D) [Doc.
#276], and on September 12, 2016, she filed a motion to
vacate sentence under 28 U.S.C. § 2255 [Doc. #291].
both motions is Defendant's desire for consideration for
an earlier release, via a reduced sentence, in recognition of
her accomplishments while incarcerated, including in the
areas of education and substance abuse rehabilitation. §
3553(a)(2)(D) lists “provid[ing] the defendant with
needed educational or vocational training, medical care, or
other correctional treatment in the most effective
manner” as a factor to be considered in imposing
sentence. However, the Court already took that into
consideration in imposing a sentence of 60 months, well below
the Guidelines range of 240 months. See Judgment
[Doc. #219], Pg. ID 769 (“The Court recommends
placement at a facility that offers the Comprehensive Drug
Treatment Program offered by the Bureau of Prisons”).
There is no factual or legal basis to reconsider the sentence
under § 3553(a)(2)(D).
states that her § 2255 motion is based on
“Amendment 794 mitigating role reduction and/or removal
of any or all enhancement....” [Doc. #291, Pg. ID 966.
Amendment 794, effective date November 1, 2015, altered
Application Note 3(A) of U.S.S.G. § 3B1.2, and
“provide[d] additional guidance to sentencing courts in
determining whether a [3B1.2] mitigating role adjustment
applies.” U.S.S.G. app. C, amend. 794 (2015). However,
even if it were substantively applicable to Defendant, this
amendment is not retroactive to her 2013 sentence. See
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.”).
addition, although Defendant brings the motion under §
2255, it is more properly construed as having been brought
under 18 U.S.C. § 3582(c)(2). In United
States v. Brooks, 2018 WL 3972198, at *1 (E.D. Mich.
Aug. 20, 2018), the Court explained:
“As an initial matter, although Brooks brings her
motion pursuant to 28 U.S.C. § 2255, it is properly
construed under 28 U.S.C. § 3582. ‘[W]hen the
motion argues that sentencing guidelines have been modified
to change the applicable guidelines used in the
defendant's sentencing[, ] then the motion is rightly
construed as a motion to amend sentencing pursuant to §
3582.... On the other hand, when a motion ... otherwise
attacks the petitioner's underlying conviction or
sentence, that is an attack on the merits of the case and
should be construed as a § 2255 motion.'”
(quoting United States v. Carter, 500 F.3d 486, 490
(6th Cir. 2007).
See also United States v. Fowler, 2018 WL 834615 at
*2 (E.D. Tenn. Feb. 12, 2018) (construing § 2255 motion
based upon Amendment 794 as a § 3582 motion). However,
this Court has already denied Defendant's § 3582
motion, and the present motion is well past the 14-day period
for filing motions for rehearing or reconsideration.
See E.D. Mich. L.R. 7.1(h)(1).
Defendant has been released from custody and is on supervised
release. See Doc. #296 (order modifying conditions
of supervised release to include placement at a Residential
Reentry Center for up to 180 days). Therefore, apart from
issues discussed above, her request for sentencing reduction
or reconsideration is moot.