United States District Court, N.D. Alabama, Southern Division
LOVELACE BLACKBURN SENIOR UNITED STATES DISTRICT JUDGE
case is presently pending before the court on Motion Pursuant
to 28 U.S.C. §1651 and 28 U.S.C. § 2255 for Newly
Discovered Evidence to Vacate, Set Aside, or Correct a
Sentence in the Interest of Justice [hereinafter
“Motion to Vacate”], (doc. 1; crim. doc. 20),
Motion Pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G.
§ 1B1.10(a)(1) & (c) for Reduction of Sentence by a
Person in Federal Custody [hereinafter “Motion to
Reduce Sentence”], (crim. doc. 19), filed by Jermaine
Hall. The Government filed a Motion to Dismiss the Motion to
Vacate, (doc. 4), to which Hall filed a Response, (doc. 7),
and a First Amended 28 U.S.C. § 2255 (f)(3) Motion
[hereinafter “Amended Motion to Vacate”],
“seek[ing] relief from his predicate conviction, in
light of Johnson [v. United States], 135
S.Ct. 2551 (2015)”, (doc. 6). Upon consideration of the
record, the submissions of the parties, and the relevant law,
the court is of the opinion that Hall's Motion for
Reduction of Sentence, (crim. doc. 19), is due to be denied,
the Government's Motion to Dismiss, (doc. 4), is due to
granted and Hall's Motion to Vacate, (crim doc. 20; doc.
1), and his Amended Motion to Vacate, (doc. 6), are due to be
August 2012, petitioner Jermaine Hall was indicted on three
counts of “knowingly, intentionally, and unlawfully
distribut[ing] a mixture and substance containing a
detectable amount of heroin, a controlled substance, in
violation of Title 21, United States Code, Sections 841(a)(1)
and (b)(1)(C).” (Crim. doc. 6.) He subsequently agreed
to plead guilty to all counts. (Crim. doc. 11 at 1 [sealed].)
The court accepted his plea, finding it freely and
voluntarily entered. (Crim. doc. 21 at 16.)
Probation Office prepared a Presentence Investigation Report
[hereinafter “the Report”]. (Doc. 1-1.) The
Report indicated two prior convictions for “controlled
substance offenses.” (Id. at 4-5, 24 [citing
U.S.S.G. § 4B1.1].) At sentencing, the court found,
inter alia, that Hall's prior state-court
conviction for first degree marijuana possession other than
for personal use was a controlled substance offense under
the Sentencing Guidelines in light of Eleventh Circuit
decisions United States v. Coleman, 464 Fed.Appx.
832 (11th Cir. 2012), and United States v. Robinson,
583 F.3d 1292 (11th Cir. 2009). (Crim. doc. 22 at 9-10.)
Thus, Hall was considered a career offender under the
Sentencing Guidelines. (Id. at 10.)
court sentenced Hall to a term of imprisonment of 151 months
on each of the three Counts of the Indictment, with the
sentences to be served concurrently. (Crim. doc. 17 at 2.)
Judgment was entered on August 9, 2013. (Id. at 1.)
Hall did not appeal.
April 20, 2015, Hall filed a Motion to Reduce Sentence,
(crim. doc. 19), and a Motion to Vacate, (crim. doc. 20; doc.
1). The Government moved to dismiss his Motion to Vacate as
untimely. (Doc. 4.) Thereafter, Hall filed a Response to the
Motion to Dismiss and an Amended Motion to Vacate, alleging a
A. MOTION TO REDUCE SENTENCE
has filed a motion, pursuant to 18 U.S.C. § 3582(c)(2),
seeking to reduce his sentence based on retroactive changes
to the Sentencing Guidelines, specifically Amendment 782. He
“bears the burden of demonstrating that a retroactive
Amendment has actually lowered his guideline range.”
United States v. Tellis, 748 F.3d 1305, 1308 (11th
Cir. 2014)(citing United States v. Hamilton, 715
F.3d 328, 337 (11th Cir. 2013)).
§ 3582(c)(2) states:
The court may not modify a term of imprisonment once it has
been imposed except that -
. . .
(2) 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
pursuant to 28 U.S.C. 994(o),  upon motion of
the defendant . . ., the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2)(footnote added). In its policy
statement, the Sentencing Commission has stated, “A
reduction in the defendant's term of imprisonment is not
consistent with this policy statement[, ] and therefore is
not authorized under 18 U.S.C. 3582(c)(2)[, ] if - .
. . An amendment listed in subsection (d) does not have the
effect of lowering the defendant's applicable guideline
range.” U.S.S.G. 1B1.10 (a)(2)(B). Accordingly -
In determining whether, and to what extent, a reduction in
the defendant's term of imprisonment under 18 U.S.C.
3582(c)(2) and this policy statement is warranted, the court
shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (d) had been in effect at the
time the defendant was sentenced. In making such
determination, the court shall substitute only the
amendments listed in subsection (d) for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
Id. (b)(1)(emphasis added). Thus, for this court to
be authorized to reduce Hall's sentence pursuant to
§ 3582(c)(2), it must first determine whether Amendment
782 had the effect of lowering his Sentencing Guidelines
range. United States v. Bravo, 203 F.3d 778, 780
(11th Cir. 2000)(“In undertaking this first step, only
the amended guideline is changed. All other guideline
application decisions made during the original sentencing
remain intact.”)(citing United States v.
Vautier, 144 F.3d 756, 760 (11th Cir. 1998)(citing
U.S.S.G. § 1B1.10 (b), comment n.2))
the Sentencing Guidelines currently in effect, considering
the changes in Chapter 2 (Offense Conduct) calculations in
light of Amendment 782, the court finds Base Offense Level is
22; prior to the Amendments, the Base Offense Level was 24.
The Amendment did not affect any other finding of the Report;
specifically, the Amendment did not affect the calculation of
Hall's career-offender enhanced sentence. United
States v. Cockett, 655 Fed.Appx. 800, 801 (11th Cir.
2016)(“Amendment 782 - which is listed in §
1B1.10(d) - therefore may serve as the basis for a sentence
reduction. Id. § 1B1.10(d).” However,
§3582(c)(2) only authorizes a reduction to sentences
that were ‘based on' sentencing ranges that were
subsequently lowered. . . . [B]ecause the defendants . . .
were sentenced as career offenders under § 4B1.1, they
were ineligible for relief, since only their base offense
levels, but not their guideline ranges, were impacted by the
retroactive guideline amendment.” (citing United
States v. Moore, 541 F.3d 1323, 1327-30 (11th Cir.
maximum statutory penalty under § 841(b)(1)(C) is 20
years; therefore, Hall's Guidelines Offense Level as a
career offender is, and at the time of sentencing was, 32.
U.S.S.G. § 4B1.1(b)(1). With a 3-level reduction for
acceptance of responsibility, his offense level is, and at
the time of sentencing was, 29. As a career offender,
Hall's criminal history category is, and at the time of
sentencing was, VI. Therefore, the ...