United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
Michael Chapman has moved for a sentence reduction pursuant
to 18 U.S.C. § 3582(c)(2). For the reasons stated below, the
motion is denied.
April 25, 2013, the Court sentenced the Defendant principally
to 60 months' imprisonment after he pled guilty to one
count of violating 18 U.S.C. § 2252A(a)(5)(B)
(possession of child pornography).
relevant here, the Presentence Investigation Report (PSR)
prepared for the Defendant's sentencing recommended that
the Defendant's base offense level be increased by five
levels, pursuant to Guideline § 2G2.2(b)(3)(B), because
“the defendant was aware that he was using peer-to-peer
file sharing applications and knew (or should have known)
that there was the potential for other users to access his
files at any given time, including before he deleted
them.” PSR ¶ 28. The PSR therefore concluded that
a five-level enhancement was appropriate because “the
offense involved distribution for the receipt, or expectation
of receipt, of a thing of value, but not for pecuniary
sentencing, however, the Court concluded that §
2G2.2(b)(3)(B)'s five-level adjustment does not apply in
this case. Instead, the Court concluded, based on the facts
of this case, the two-level increase at § 2G2.2(b)(3)(F)
was appropriate. The Court ultimately concluded that the
Defendant's offense level was 30, that his criminal
history category was I, and that the corresponding Guidelines
imprisonment range was 97 to 120 months'
imprisonment. The Court's 60-month sentence was,
therefore, the result of a downward variance.
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 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 “provide 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. The Court assumes for purposes of this
Decision and Order that Amendment 801 applies retroactively
and that it may therefore serve as the basis for a §
3582(c)(2) motion. But see Gouldman v. United
States, No. 1:16-CV-1394, 2016 WL 7239134, at *2 (W.D.
Mich. Dec. 15, 2016).
Defendant is not eligible for § 3582(c)(2) relief
because the Court's original sentence was the result of a
downward variance that is below the low end of what
the amended Guideline range would be if the Court applied
Amendment 801 to the Defendant's Guidelines calculation.
Except in the case of a defendant who received a downward
departure for substantial assistance (something not
applicable in this case), the Court may “not reduce the
defendant's term of imprisonment under 18 U.S.C. §
3582(c)(2) . . . to a term that is less than the minimum of
the amended guideline range determined” under Guideline
§ 1B1.10(b)(1). U.S.S.G. § 1B1.10(b)(2)(A) (2016).
Thus, where a court's original sentence was the result of
a downward variance from the original Guideline range, §
3582(c)(2) allows the Court to reduce a sentence
only to the extent that doing so would not lower the
Defendant's sentence to a term of imprisonment below the
low end of the amended Guideline range. See Id. cmt.
3 (second example); United States v. Erskine, 717
F.3d 131, 137-38 (2d Cir. 2013) (noting that Guideline §
1B1.10 “prohibit[s] further reductions based on certain
earlier-applicable variances or departures”).
if the Court granted the Defendant's § 3582(c)(2)
motion and, as a result, did not apply §
2G2.2(b)(3)(F)'s two-level enhancement, the
Defendant's total offense level-keeping all other
calculations the same, see U.S.S.G. §
1B1.10(b)(1)-would be 28. With a criminal history category of
I, the Defendant's Guideline imprisonment range would be
78 to 97 months. The low end of the Defendant's amended
Guideline range would, then, be higher than the
60-month sentence the Court originally imposed. The policy
statement at § 1B1.10(b)(2)(A) would therefore prohibit
the Court from giving the Defendant a sentence lower than the
sentence the Court already imposed.
Defendant is therefore ineligible for § 3582(c)(2)
relief. His motion for a sentence reduction is accordingly
 The Defendant filed his motion as a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2255. However, because the basis for the
Defendant's § 2255 petition was an amendment to the
U.S. Sentencing Guidelines, the Court sua sponte
converted the Defendant's petition into a motion bought
pursuant to 18 U.S.C. § 3582(c)(2). See Castro v.
United States, 540 U.S. 375, 381 (2003) (“Federal
courts sometimes will ignore the legal label that a pro
se litigant attaches to a motion and recharacterize the
motion in order to place it within a different legal
category. They may do so in order to avoid an unnecessary