Opinion
Case No.: 96-CR-80371-DT
April 12, 2002
OPINION ORDER DENYING DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE
At a session of said Court, held in the U.S. District Courthouse, City of Detroit, County of Wayne, State of Michigan, on April 12, 2002
Background
In 1996, a jury convicted Defendant Dennis Dale McLain ("McLain"), along with his codefendant Roger Smigiel, of all counts under a federal indictment charging them with mail fraud, 18 U.S.C. § 1341 (Count II), theft of a pension fund, 18 U.S.C. § 664 (Count III), money laundering, 18 U.S.C. § 1956 (Counts IV V), and conspiracy to commit each of these offenses, 18 U.S.C. § 371 (Count I). This Court sentenced McLain to 57 months imprisonment on each of Counts I, II, and III, to run concurrent, and 97 months on each of Counts IV and V, to run concurrent with each other and to run concurrent to the terms imposed on Counts I, II, and III. McLain appealed his convictions and sentences. The Sixth Circuit Court of Appeals affirmed in all respects. See United States v. Smigiel, Nos. 97-1571/1577, 1999 WL 196575 (6th Cir. Mar. 29, 1999).
Currently before the Court is McLain's pro se motion for reduction of sentence based upon Amendment 634, an amendment to the United States Sentencing Guidelines that took effect in November of 2001. ( See U.S.S.G. App. C, amendment 634).
The Court notes that McLain originally referenced Amendment 613 in his motion, but clarified in his reply brief that he intended to reference, and his motion is based upon, Amendment 634. ( See Def.'s Reply at 1).
McLain asserts that this recent amendment to the money laundering guidelines should be applied to him retroactively under 18 U.S.C. § 3582 (c)(2), which provides:
(c) Modification of an imposed term of imprisonment — The court may not modify a term of imprisonment once it has been imposed except that —
. . . .
(2) in the case 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 pursuant to 28 U.S.C. § 994 (o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582 (c)(2) (emphasis added). The "applicable policy statement" referenced above is found at Section 1B1.10 of the Sentencing Guidelines, which provides as follows:
REDUCTION IN TERM OF IMPRISONMENT AS A RESULT OF AMENDED GUIDELINE RANGE (POLICY STATEMENT)
(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582 (c)(2). If none of the amendments listed in subsection ("c") is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582 (c)(2) is not consistent with this policy statement and thus is not authorized.
U.S.S.G. § 1B1.10 (a) (emphasis added). Section 1B1.10 (c) then lists all of the amendments in Appendix C that are covered by the policy statement. Notably, amendment 634 is not included in the list. Thus, McLain is not entitled to a reduction in sentence under 18 U.S.C. § 3582 (c)(2).
Alternatively, McLain, relying on United States v. Caper, 61 F.3d 1100, 1109 (4th Cir. 1995), asks this Court to grant his motion for reduction in sentence arguing that Amendment 634 is a clarifying, rather than a substantive, amendment to the sentencing guidelines. In United States v. Caper, the Fourth Circuit held that "courts can give retroactive effect to a clarifying (as opposed to substantive) amendment regardless of whether it is listed in U.S.S.G. § 1B1.10." Id. The court further explained that this rule applies: 1) "when a sentencing court is faced with a presentencing clarifying amendment that postdates the particular edition of the Guidelines Manual used at sentencing," or 2) "when a reviewing court is confronted with a postsentencing clarifying amendment." Id.
McLain's argument fails for several reasons. First, McLain brought his motion for reduction in sentence under 18 U.S.C. § 3582. As discussed supra, § 3582 allows a district court to reduce a term of imprisonment "based on a sentencing range that has subsequently been lowered" by the Sentencing Commission under certain circumstances, which are not present here. Section 3582 does not permit this Court to modify a previously imposed sentence simply because an amendment that can be construed as a "clarifying" amendment has been subsequently issued by the Sentencing Commission.
The Court is also satisfied that Capers is of no aid to McLain. In Capers, the Fourth Circuit held that a sentencing court may consider a "clarifying" amendment if it is "faced with a presentencing clarifying amendment" or a " reviewing court may consider a "clarifying" amendment when it is confronted with a post sentencing clarifying amendment. Id. at 1109 (emphasis added). As this Court sentenced McLain years before Amendment 634 was issued, under Capers this Court cannot consider the effect of a "clarifying" amendment on McLain's sentence under a motion for reduction of sentence brought under § 3582. Moreover, courts that have considered the question of whether Amendment 634 is a "clarifying" or a "substantive" amendment have held that Amendment 634 is a substantive change to the guidelines. See United States v. King, 280 F.3d 886, 891 (8th Cir. 2002); United States v. Sabbeth, 277 F.3d 94, 99 (2d Cir. 2002); United States v. McIntosh, 280 F.3d 479, 485 (5th Cir. 2002).
The Court expresses no opinion as to whether Defendant McLain could have sought relief in a motion brought under 28 U.S.C. § 2255. See Lee v. United States, 221 F.3d 1335, 2000 WL 875359 (6th Cir. 2000) (in ruling on defendant's motion for reduction of sentence under § 3582, court held that "[w]hile clarifying amendments to the Sentencing Guidelines may be applied retroactively to reduce a defendant's sentence, [the defendant] must seek this relief in a motion to vacate sentence under 28 U.S.C. § 2255."). However, because, as set forth above, the courts that have considered this issue have held that Amendment 634 is a substantive, and not a clarifying, amendment, the Court would deny relief in this case even if relief had been sought pursuant to § 2255.
Accordingly, for the reasons set forth above,
IT IS ORDERED that Defendant McLain's Motion for Reduction of Sentence is DENIED.