United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S
“MOTION TO REDUCE SENTENCE AND APPOINTMENT OF
H. CLELAND UNITED STATES DISTRICT JUDGE
moves to reduce his sentence based on Amendment 798 of the
United States Sentencing Guidelines. (ECF No. 158.) The
motion has been thoroughly briefed by both Defendant and the
government. (ECF Nos. 160, 162, 165, 166.) For the reasons
explained below, the motion will be denied.
was convicted of possession with intent to distribute cocaine
(Count 1), possession with intent to distribute
methamphetamine (Count 2), and felon in possession of a
firearm (Count 3). (ECF No. 47, PageID.130.) Before
sentencing, the Probation Office prepared a presentence
investigation report on July 10, 1997. The report detailed
that Defendant was found guilty of two prior controlled
substance offenses. One included a delivery of marijuana
charge in Oklahoma, for which Defendant was sentenced to five
years probation under a deferred sentence. The other included
a delivery of marijuana charge in Michigan, where Defendant
was sentenced to one to two years probation. Based on these
two prior offenses, Defendant qualified as a career offender
under U.S. Sentencing Guidelines Manual § 4B1.1 (U.S.
Sentencing Comm'n 1997). He was sentenced to concurrent
terms of thirty years (Count 1), thirty-seven years (Count
2), and ten years (Count 3).
now challenges his classification as a career offender. He
relies on a 2016 amendment to the U.S. Sentencing Guidelines
and argues for its retroactive effect on his sentence. (ECF
No. 158, PageID.408-09.) U.S.S.G. Amendment 798 (U.S.
Sentencing Comm'n 2016). Defendant argues that this
change in classification should convince the court to reduce
his sentence under 28 U.S.C. § 2255 collateral relief.
He claims the classification resulted in an increased
guideline range from the range of eleven years and four
months to fourteen years and seven months to the range of 360
months to life. (ECF No. 158, PageID.408.)
solely relies on the Sixth Circuit precedent United
States v. Kennedy, 683 Fed.Appx. 409 (6th Cir. 2017) to
support his claim. That case is inapplicable to the current
motion for two reasons.
Kennedy concerned a different provision of Amendment
798. In Kennedy, 683 Fed.Appx. at 418-19, the Sixth
Circuit retroactively applied the amendment's list of
“crimes of violence” to deny a defendant's
sentencing challenge. However, here, Defendant does not argue
over the definition of a “crime of violence.”
Instead, Defendant disputes his sentencing as a career
offender for his two prior “controlled substance
offense[s].” U.S.S.G. § 4B1.1(a).
798 included guidance that state misdemeanors may be
classified as felonies for purposes of a career offender
enhancement. It added that this may justify a downward
departure. U.S.S.G. Amendment 798. A felony under the
guidelines is “an offense punishable by death or
imprisonment for a term exceeding a year.” U.S.S.G.
§ 4B1.2 cmt. 1. Here, Defendant's sentence was
enhanced due to a charge for attempted delivery of marijuana
in Michigan. (ECF No. 158, PageID.414.) Under Michigan law,
that crime is punishable by over a year imprisonment but is
classified as a misdemeanor. Mich. Comp. Laws §
333.7401(2); Mich. Comp. Laws § 750.92(3). Thus,
Defendant could qualify for a downward departure under
Defendant does not point to any legal basis for retroactively
applying Amendment 798's state misdemeanor guidance. The
court could not discover a case doing so independently.
Simply having precedent finding one part of an amendment to
be retroactive does not automatically apply retroactivity to
the whole amendment. In fact, after Kennedy, the
Sixth Circuit itself found another section of Amendment 798
to be substantive and thus non-retroactive. United States
v. Jackson, 901 F.3d 706 (6th Cir. 2018). In doing so,
the court expressly stated that “[n]othing prohibits an
amendment from being clarifying in part and substantive in
part.” Id. at 709 (relying on U.S.S.G. §
1B1.11(b)(2) and United States v. Geerken, 506 F.3d
461 (6th Cir. 2007)). Specifically, the court stated that
“Amendment 798 has clarifying [thus retroactive] and
substantive [non-retroactive] pieces.” Id.
Accordingly, Kennedy does not bind this court to
retroactive application of an unrelated part of Amendment
Kennedy involved a direct appeal. Here, Defendant is
requesting resentencing through § 2255 habeas petition.
Courts throughout this circuit have previously found
arguments for resentencing based on “clarifying”
amendments unsuitable for collateral review. Maxwell v.
United States, 2019 WL 148867, at *2 (E.D. Tenn. Jan. 9,
2019); Johnson v. United States, 2016 WL 6084018, at
*2 (S.D. Ohio Oct. 17, 2016); United States v.
Osborne, 2017 WL 915129, at *2 (E.D. Ky. Mar. 8, 2017);
Hinkle v. United States, 2019 WL 3293908, at *6
(E.D. Tenn. Jul. 22, 2019); Morgan v. United States,
2017 WL 990793, at *2 (E.D. Mich. Jan. 31, 2017); United
States v. Boyd, 2017 WL 3391656, at *2 (E.D. Tenn. Aug.
7, 2017). Defendant cannot now rely on Kennedy to
obtain resentencing through a § 2255 motion.
that Defendant's petition is meritless, he is not
entitled to appointment of counsel. Lemeshko v.
Wrona, 325 F.Supp.2d 778 (E.D. Mich. 2004) (citing
Thirkield v. Pitcher, 199 F.Supp.2d 637, 653 (E.D.
asserts that the Sixth Circuit precedent United States v.
Kennedy, 683 Fed.Appx. 409 (6th Cir. 2017) binds this
court and allows resentencing for his 1997 conviction.
Kennedy applied to a different part of Amendment 798
and involved a direct appeal, not a habeas petition. Thus,
Defendant's motion is denied. Accordingly, IT IS ORDERED