United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
December 2, 2014, Robyn Reed was sentenced in this court
after she pleaded guilty to one count of conspiracy to
possess with intent to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a) and 846. The
statute under which she was convicted imposed a mandatory
minimum sentence of 10 years imprisonment and 5 years
supervised release. 21 U.S.C. § 841(b)(1)(A)(viii).
Reed's relevant-conduct drug amount was between 1.5 and
4.5 kilograms of pure methamphetamine, resulting in a base
offense level of 36. When paired with her criminal history
category III, Reed's advisory guideline range was 168-210
months. Based on the relevant sentencing factors, the court
sentenced Reed to 132 months imprisonment, to be followed by
5 years supervised release.
has filed a motion for post-conviction relief under 28 U.S.C.
§ 2255. She has also filed a motion to modify her
sentence under 18 U.S.C. § 3582(c). Both motions will be
Motion under § 2255
argues in her § 2255 motion that she is entitled to a
reduction in her sentence under the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Court held that the vagueness of the
“residual clause” in the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B),
violated the due process clause of the Fifth Amendment. The
decision in Johnson does not apply to Reed's
sentence, however, so her motion must be denied.
does not apply to Reed's sentence because she was not
sentenced as an armed career criminal under 18 U.S.C. §
924(e)(2)(B). Nor was Reed sentenced under any other
provision containing language similar to the “residual
clause” invalidated by Johnson. Instead, Reed
was sentenced based on the relevant-conduct provisions of the
statute she violated and the Sentencing Guidelines. Thus,
there can be no argument that Reed was sentenced under a
provision that has now been found unconstitutional under the
decision in Johnson. Accordingly, Reed's motion
for relief under § 2255 will be denied. For the same
reasons, her request for appointment of counsel to assist her
in pursuing her petition will also be denied.
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted).
the rule allows a court to ask the parties to submit
arguments on whether a certificate should issue, it is not
necessary to do so in this case because the question is not a
close one. Reed has not made a substantial showing of a
denial of a constitutional right so no certificate will
issue. Reed is free to seek a certificate of appealability
from the court of appeals under Fed. R. App. P. 22, but that
court will not consider her request unless she first files a
notice of appeal in this court and pays the filing fee for
the appeal or obtains leave to proceed in forma pauperis.
Motion under § 3582(c)
motion under § 3582(c), Reed argues that she is entitled
to a reduction in her sentence in light of the United States
Sentencing Commission's adoption of Amendment 794, which
became effective on November 1, 2015. Amendment 794 amended
the commentary and notes to U.S.S.G. § 3B1.2, which
concerns the mitigating role reduction. Reed argues that
because she played a minor role in the offense underlying her
conviction, she is entitled to a reduction under the
additional guidance provided to courts in Amendment 794.
not entitled to a sentence reduction, however, because
Amendment 794 has not been held retroactive on collateral
review. See U.S.S.G. § 1B1.10(d) (listing
retroactive amendments). Reed cites United States v.
Quintero-Leyva, 823 F.3d 519, 521 (9th Cir. 2016), but
that case does not help her. In that case, the court held
that Amendment 794 applies retroactively in direct appeals,
but declined to determine whether “a defendant who has
exhausted his direct appeal can move to reopen sentencing
proceedings.” Id. Assuming the Seventh Circuit
agrees with the Ninth Circuit that Amendment 794 applies
retroactively to cases pending on direct appeal, therefore,
Reed is still not entitled to relief on collateral review.
If, or when, Amendment 794 becomes available retroactively to
defendants who have exhausted their direct appeal, Reed
should file a new § 3582 motion.