Opinion
CAUSE NO.: 2:12-CR-26-TLS-JEM
09-15-2020
UNITED STATES v. BEAVER BERNARD RUSSELL
OPINION AND ORDER
This matter is before the Court on Defendant Beaver Bernard Russell's pro se Motion to Request Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c) [ECF No. 56]. In his motion, Defendant Russell requests a reduction of his sentence pursuant to 18 U.S.C. § 3582(c) and United States Sentencing Guideline § 1B1.10, seeking a two-level reduction of his offense level based upon the retroactive application of Amendment 782 to the Sentencing Guidelines.
Courts have limited authority to modify a term of imprisonment once it is imposed. See 18 U.S.C. § 3582(c); United States v. Stevenson, 749 F.3d 667, 669 (7th Cir. 2014) ("A term of imprisonment is a final judgment that can only be modified in limited circumstances."). Title 18 U.S.C. § 3582(c)(2) permits a defendant who was sentenced to a term of imprisonment "based on" a Guidelines sentencing "range that has subsequently been lowered" by retroactive amendment to move for a sentence reduction.
Defendant Russell was convicted of violating 18 U.S.C. § 2113(a)—bank robbery—and was sentenced to 140 months of imprisonment on July 29, 2014. In this motion, Defendant Russell seeks a reduction based on Amendment 782, which applies retroactively. See U.S. Sentencing Guidelines Manual § 1B1.10(d). Amendment 782 changed the threshold amounts in the drug quantity tables at U.S.S.G. § 2D1.1 and § 2D1.11, so that most drug quantities will have a base offense level that is two levels lower than before the amendment. See U.S. Sentencing Guidelines Manual app. C, amend. 782. Because Defendant Russell's conviction involved solely bank robbery, his Guideline range was determined by U.S.S.G. § 2B3.1, not by the drug quantity table. Thus, Amendment 782 is not applicable to Defendant Russell's sentence in this case.
The Court notes that the caption to Defendant's motion contains the cause number 2:12-CR-10 and that the motion represents that Defendant was sentenced to a term of imprisonment of 125 months. On February 9, 2012, Defendant was sentenced to a term of imprisonment of 125 months on two counts of bank robbery in the United States District Court for the Eastern District of Kentucky in cause number 2:12-CR-10. See PSR ¶ 71. The sentence in the instant case was ordered to run concurrently with that sentence in 2:12-CR-10. See Judgment 2, ECF No. 49. --------
The Court recognizes that U.S.S.G. § 2B3.1 was amended by Amendment 791 and by Amendment 805 after the date of Defendant Russell's sentencing. See U.S. Sentencing Guidelines Manual app. C, amends. 791 (effective Nov. 1, 2015), 805 (effective Nov. 1, 2018). First, neither amendment provides a basis for retroactive application under § 3582(c)(2). See U.S. Sentencing Guidelines Manual § 1B1.10(d) (listing neither Amendment 791 nor Amendment 805 as a covered amendment). Moreover, neither amendment would affect the calculation of Defendant Russell's sentence in this case. Amendment 791 amended, among other things, the monetary tables in U.S.S.G. § 2B3.1(b)(7) to adjust the loss amounts to account for inflation. See U.S. Sentencing Guidelines Manual app. C, amend. 791. The loss table in U.S.S.G. § 2B3.1(b)(7) was not used in the calculation of Defendant Russell's offense level. See PSR ¶¶ 9, 11, 13, 19-48 (listing the losses from the bank robberies in the amounts of $3,050 and $4,520, and $2,079 and not including any increase in offense level based on the loss table); see also U.S. Sentencing Guidelines Manual § 2B3.1(b)(7) (2013) (requiring the loss exceed $10,000 to trigger an increase in level under the loss table). Amendment 805 amended Application Note 1 to U.S.S.G. § 1B1.1 by redesignating paragraphs (D) through (L) as paragraphs (E) through (M), respectively. See U.S. Sentencing Guidelines Manual app. C, amend. 805. Because the Application Note to U.S.S.G. § 2B3.1 cross-references one of the redesignated paragraphs from U.S.S.G. § 1B1.1, Amendment 805 included a corresponding amendment to Application Note 2 to U.S.S.G. § 2B3.1 by striking "Application Note 1(D)(ii) of § 1B1.1" and inserting "Application Note 1(E)(ii) of § 1B1.1." See U.S. Sentencing Guidelines Manual app. C, amend. 805.
Because no new Guideline calculations are applicable to Defendant Russell's sentence, much less one that has been subsequently lowered by a retroactive amendment, Defendant Russell is not eligible for relief under § 3582(c)(2).
CONCLUSION
For the reasons stated above, Defendant's Motion to Request Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c) [ECF No. 56] is DENIED. Defendant's Motion for Consideration of Compassionate Release or Reduction in Sentence Pursuant to U.S.C. § 3582(c)(1)(A) [ECF No. 59] REMAINS PENDING and will be ruled on separately by the Court once the motion is fully briefed.
SO ORDERED on September 15, 2020.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT