Opinion
No. 5:10-CR-00179-F-1
09-26-2016
UNITED STATES OF AMERICA v. BETTY TRUESDALE STRICKLAND, Defendant.
ORDER
This matter is before the court on Betty Truesdale Strickland's Motions for Reduction [DE-108, -109]. In her motions, Strickland contends that she is entitled to a reduction in her sentence pursuant to Amendment 794. Id. at 1.
Strickland's motions [DE-108, -109] are duplicates.
Amendment 794 amended the Commentary to U.S.S.G. § 3B1.2, which addresses a mitigating role in the offense. United States v. Donis-Galan, No. 15-11209, 2016 WL 1238205, at *2 n.2 (11th Cir. March 30, 2016). Amendment 794 introduced a list of non-exhaustive factors that a sentencing court should look at when determining whether or not to apply a mitigating role adjustment. United States v. Gomez-Valle, No. 15-41115, 2016 WL 3615688, at *4 (5th Cir. July 5, 2016). Amendment 794 also states that "a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline." Id.
The effective date of Amendment 794 was November 1, 2015. See U.S.S.G. app. C, amend. 794, at 118 (Supp. Nov. 1, 2015).
The factors are "(i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant's participation in the commission of the criminal activity"; and "(v) the degree to which the defendant stood to benefit from the criminal activity." See U.S.S.G. app. C, amend. 794, at 116 (Supp. Nov. 1, 2015).
Amendment 794 has been found to apply retroactively in direct appeals. See United States v. Quintero-Leyva, 823 F.3d 519, 521 (9th Cir. 2016). In this case, however, Strickland has already filed a direct appeal, and the Fourth Circuit Court of Appeals affirmed her convictions and sentence. See Unpublished Opinion [DE-83]. Likewise, Amendment 794 is not retroactively applicable on collateral review. U.S.S.G. § 1B1.10 lists those Guidelines amendments that have been made retroactively applicable to defendants on collateral review, and Amendment 794 is not listed. United States v. Perez-Carrillo, No. 7:14CR00050, 7:16CV81172, 2016 WL 4524246, at *2 (W.D. Va. Aug. 26, 2016).
A review of the record reveals that Strickland has a pending § 2255 motion [DE-86]. --------
In light of the foregoing, Strickland is not entitled to relief under Amendment 794. Consequently, Strickland's Motions for Reduction [DE-108, -109] are DENIED.
SO ORDERED.
This the 26 day of September, 2016.
/s/_________
JAMES C. FOX
Senior United States District Judge