United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
Randall Lose has moved for a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2) in light of a recent Amendment to
the U.S. Sentencing Guidelines, as well as his post-sentence
conduct. For the reasons stated below, the motion is denied.
March 14, 2014, the Court sentenced the Defendant to 240
months' imprisonment after he pled guilty to one count of
violating 18 U.S.C. § 2251(a) (production of child
pornography). At sentencing, the Court concluded that the
Defendant's base offense level was 32 pursuant to U.S.
Sentencing Guideline § 2G2.1(a); that the offense level
should be increased by two levels pursuant to §
2G2.1(b)(1)(B) because the victim was at least 12 years old,
but not yet 16 years old; that the offense level should be
increased by four additional levels pursuant to §
2G2.1(b)(4) because the pornographic material at issue
portrayed sadistic or masochistic conduct or other depictions
of violence; that the offense level should be increased two
more levels pursuant to § 2G2.1(b)(6)(B) because of the
Defendant's use of a computer in committing the offense;
that the offense level should be decreased three levels
pursuant to § 3E1.1(a) and § 3E1.1(b) because the
Defendant accepted responsibility and pled guilty; and,
finally, that the offense level should be increased five
levels pursuant to § 4B1.5(b)(1) because the Defendant
had engaged in “a pattern of activity involving
prohibited sexual conduct.”
Court therefore concluded that the Defendant's adjusted
offense level was 42. Combined with a criminal history
category of I, the Defendant's Guideline imprisonment
range was 360 months to life. As noted, however, the Court
sentenced the Defendant to 240 months' imprisonment.
Defendant has now filed a motion pursuant to 18 U.S.C. §
3852(c)(2) seeking a sentence reduction based on Amendment
801 to the U.S. Sentencing Guidelines. As is relevant to the
Defendant's § 3582(c)(2) motion, Amendment 801
“addresses differences among the circuits involving
application of the tiered distribution enhancements in
[Guideline] § 2G2.2, ” which “provides for
an increase for distribution of child pornographic material
ranging from 2 to 7 levels depending on certain
factors.” U.S.S.G. Supp. to App'x C, Amend. 801,
Reason for Amendment.
Defendant is ineligible for a § 3582(c)(2) sentence
reduction. As noted, the Defendant's Guideline
calculation did not include an upward enhancement for
distribution of child pornography. Section 3582(c)(2) allows
a court to reduce a sentence only “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.” 18 U.S.C.
§ 3582(c)(2) (emphasis added). No part of the
Defendant's sentence, however, has “subsequently
been lowered” by Amendment 801. See also Freeman v.
United States, 564 U.S. 522, 530 (2011) (noting that
U.S.S.G. § 1B1.10(b)(1), which implements §
3582(c)(2), “seeks to isolate whatever marginal effect
the since-rejected Guideline had on the
defendant's sentence”) (emphasis added). The
Defendant is therefore ineligible for a sentence reduction
based on Amendment 801.
addition to seeking a sentence reduction based on Amendment
801, the Defendant seeks a sentence reduction based on
“his excellent post-incarceration record.” Docket
No. 42 at 10. The Defendant argues that “[a]dapting to
prison life without disciplinary issues proves that [he] is
an excellent candidate for alternative incarceration such as
being placed on home detention in the full time custody of
his parents with permission to travel to receive medical
extent this motion based on § 3582(c)(2), it is denied.
When a defendant is eligible for a § 3582(c)(2) sentence
reduction, the Court “may consider post-sentencing
conduct of the defendant . . . in determining: (I) whether a
reduction in the defendant's term of imprisonment is
warranted; and (II) the extent of such reduction.”
U.S.S.G. § 1B1.10, cmt. 1(B)(iii) (2016). But the Court
may consider such conduct only when the defendant is
otherwise eligible for a sentence reduction pursuant to
§ 3582(c)(2). As discussed above, the Defendant is not
eligible for such relief.
extent the Defendant's motion is based on something other
than § 3582(c)(2), it is denied because the Court lacks
authority to grant such relief. Section 3582(c) states that
“[t]he court may not modify a term of imprisonment once
it has been imposed, ” except when one of several
exceptions applies. However, none of those exceptions applies
in this case. Likewise, the Court has no authority to place a
prisoner on home confinement after imposing sentence. Such
authority is instead committed to the Bureau of Prisons.
See 18 U.S.C. § 3624(c)(2) (authorizing the
Director of the Bureau of Prisons “to place a prisoner
in home confinement for the shorter of 10 percent of the term
of imprisonment of that prisoner or 6 months” when a
prisoner is approaching the end of his sentence). There is,
therefore, no basis for the Court to grant the
Defendant's request for a sentence modification or
reduction based on his post-sentence conduct.
reasons stated above, the Court denies the Defendant's
motion for a sentence reduction (Docket No. 42).