United States District Court, D. Montana, Billings Division
P. Watters United States District Court
16, 2017, Defendant Foster moved the Court to reduce his
sentence under 18 U.S.C. § 3582(c)(2) and United States
Sentencing Guidelines Amendment 794 to reflect the fact that
he played a minimal or minor role in the offense.
See Mot. § 3582 (Doc. 97) at 1-3; U.S.S.G.
was convicted of possessing at least 50 grams of a substance
containing methamphetamine with intent to distribute it, a
violation of 21 U.S.C. § 841(a)(1) (Count 2), and
possessing a firearm with an obliterated serial number, a
violation of 18 U.S.C. § 922(k) (Count 4). He was
sentenced on October 28, 2015. Minutes (Doc. 48); Judgment
(Doc. 49). He did not seek a role reduction under U.S.S.G.
§ 3B1.2. He was sentenced to a total of 70 months in
prison, to be followed by five years' supervised release.
Am. Judgment (Doc. 63) at 2-3.
days after Foster's sentencing hearing, on November 1,
2015, an amendment to the commentary to U.S.S.G. § 3B1.2
went into effect. The purpose of the amendment was to broaden
the circumstances supporting a downward adjustment for a
defendant who plays a minor role in the offense. See
generally U.S.S.G. Supplement to Appendix C at 114-17
(Nov. 1, 2016); United States v. Quintero-Leyva, 823
F.3d 519, 522 (9th Cir. 2016).
November 2, 2015, Foster filed a notice of appeal. On August
13, 2016, the parties stipulated that there were no
non-frivolous issues to be presented and that dismissal was
appropriate. See Stipulation (Doc. 13), United
States v. Foster, No. 15-30333 (9th Cir. filed Aug. 13,
2016). Foster's appeal was dismissed. See Order
(Doc. 14), Foster, No. 15-30333 (9th Cir. Aug. 22,
August 30, 2016, Foster filed a motion to vacate, set aside,
or correct the sentence under 28 U.S.C. § 2255. The
motion and a certificate of appealability were denied on
December 7, 2016. See Mot. § 2255 (Docs. 88,
91, 92); Order (Doc. 93). Foster's appeal from that
decision remains pending. See United States v.
Foster, No. 16-36033 (9th Cir. filed Dec. 14, 2016).
on 18 U.S.C. § 3582(c)(2) and Amendment 794, Foster now
asks the Court to consider reducing his offense level on the
grounds that he played a minor role in the offense.
See Mot. § 3582 (Doc. 97) at 1-3.
Ninth Circuit Court of Appeals applies Amendment 794
"retroactively" to defendants whose appeals are not
exhausted. See Quintero-Leyva, 823 F.3d at 521. In a
footnote, the Quintero court pointed out that the
case "did not present the issue of whether, under the
Amendment, a defendant who has exhausted his direct appeal
can move to reopen sentencing proceedings." Id.
at 521 n.l.
the issue Foster presents. His appeal was open when Amendment
794 was enacted, but it was exhausted several months before
he filed the instant motion asking the Court to apply it to
his case. Therefore, he must identify a statute or rule that
authorizes reopening of his sentencing proceedings.
18 U.S.C. § 3582(c) provides that, once a sentence is
imposed, a court's authority to alter it is limited. So
far as this Court is aware, § 3582(c)(2) provides the
only authority for altering a sentence to apply a guideline
amendment. Subsection (c)(2) authorizes a sentence reduction
for "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,
" provided "such a reduction is consistent with
applicable policy statements issued by the Sentencing
794 clarified application of U.S.S.G. § 3B1.2. It did
not lower a sentencing range as, for instance, Amendment 782
lowered the sentencing ranges applicable to drug offenses.
Compare U.S.S.G. § 2D1.1(c)(1) (Nov. 1, 2013),
with U.S.S.G. § 2D1.1(c)(1) (Nov. 1, 2014).
Moreover, the Commission's policy statement regarding
sentence reductions under 18 U.S.C. § 3582(c)(2) is
located in U.S.S.G. § 1B 1.10. The Commission has not
included Amendment 794 in the very small group of
"covered amendments" that are given retroactive
application. See U.S.S.G. § 1B1.10(a)(1), (d)
(Nov. 1, 2016). Therefore, 18 U.S.C. § 3582(c)(2) does
not authorize the Court to reduce Foster's sentence based
on Amendment 794.
provisions of 18 U.S.C. § 3582(c) also fail to support
Foster's motion. The Director of the Bureau of Prisons
has not moved to reduce Foster's sentence. Id.
§ 3582(c)(1)(A). The conditions of Fed. R. Crim. P.
35(a) or (b) have not been met. Id. §
3582(c)(1)(B). As for other statutory authority, see
id., a motion under 28 U.S.C. § 2255 could lie.
See Plea Agreement (Doc. 32) at 7 ¶ 8. But,
first, it is not possible to say that Foster was so clearly
deserving of a minor role reduction that no competent counsel
could have failed to seek it. See id.; Strickland v.
Washington,466 U.S. 668, 687-88 (1984). Second, Foster
has already filed a § 2255 motion, and the current