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United States v. Pielsticker

United States District Court, N.D. Oklahoma

December 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES DOUGLAS PIELSTICKER, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before the court are the Motion for Modification or Reduction of Sentence Pursuant to U.S.C. § 3582(c)(2) [Doc. No. 77] of the defendant, James Douglas Pielsticker, and the Motion to Dismiss Defendant's Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) [Doc. No. 79] of the United States. For the reasons set forth below, the court grants the United States' motion [Doc. No. 79] and dismisses Pielsticker's motion for lack of jurisdiction [Doc. No. 77].

         I. Background

         On October 9, 2015, in accordance with U.S.S.G. § 2B1.1(b), the court sentenced Pielsticker to a 90-month term of imprisonment, three years of supervised release, and restitution. [Doc. No. 66]. Before his sentencing, Pielsticker had moved for a two-level downward variance based on the then-forthcoming Amendment 791 to § 2B1.1(b)'s fraud-loss tables. [Doc. No. 46]. At the sentencing hearing, the court denied the motion for downward variance, and the Tenth Circuit affirmed the court's ruling on appeal. [Doc. No. 67, pp. 154-55]; United States v. Pielsticker, 678 Fed.Appx. 737, 750 (10th Cir. 2017).

         On November 3, 2017, Pielsticker moved to reduce his sentence pursuant to U.S.C. § 3582(c)(2), arguing he should be given the benefit of Amendment 791, now that it is in effect. [Doc. No. 77]. In response, the United States moved to dismiss Pielsticker's motion. [Doc. No. 79].

         II. Analysis

         In support of its motion to dismiss, the United States argues the court lacks jurisdiction to reduce Pielsticker's sentence under § 3582. The court agrees.

         “Congress has granted jurisdiction to federal courts to reduce a previously imposed sentence if the Sentencing Commission has lowered the applicable sentencing range and ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.'” United States v. Ramirez, 698 Fed.Appx. 943, 945 (10th Cir. 2017) (unpublished) (quoting 18 U.S.C. § 3582(c)(2)). “The applicable policy statement states that a reduction in the term of a defendant's sentence is ‘not consistent with this policy statement' and therefore not authorized under § 3582(c)(2) if ‘[n]one of the amendments listed in subsection (d) is applicable to the defendant . . . .” Id. (quoting U.S.S.G. § 1B1.10(a)(2)). As Pielsticker acknowledges, Amendment 791 is not one of the amendments listed in § 1B1.10(d), and he is therefore not entitled to relief under § 1B1.10. Id. at 945-46.

         Instead, Pielsticker argues the court has jurisdiction to retroactively apply Amendment 791 because it is “clarifying, ” not “substantive.” [Doc. No. 81');">81, p. 2] (citing United States v. Catalan, 701 F.3d 331, 332-33 (9th Cir. 2012). However,

whether an amendment to the guidelines is clarifying or substantive goes to whether a defendant was correctly sentenced under the guidelines in the first place, not to whether a correct sentence has subsequently been reduced by an amendment to the guidelines and can be modified in a proceeding under § 3582(c)(2).

United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003). “[A]n argument that a sentence was incorrectly imposed should be raised on direct appeal or in a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.” Ramirez, 698 Fed.Appx. at 946 (quoting Torres-Aquino, 334 F.3d at 941). Because Pielsticker “proceeded exclusively under § 3582(c)(2), [the court] ha[s] no occasion to consider whether Amendment [791] applies retroactively as a clarifying amendment.” Id.

         In response, Pielsticker argues the court has jurisdiction “to consider whether Amendment 791 is retroactive . . . because the applicability of Amendment 791 was not raised exclusively in [] Pielsticker's [§] 3582 motion, but was raised previously on direct appeal.” [Doc. No. 81');">81, p. 3]. Pielsticker cites no case law in support of this argument, which relies on a misreading of the Tenth Circuit's language in Torres-Aquino and Ramirez. The Tenth Circuit's reasoning in those cases was not that an argument that a sentence was incorrectly imposed must first be raised on direct appeal or pursuant to § 2255 before being raised in a motion exclusively under § 3582(c)(2), but that an argument a sentence was incorrectly imposed may not be raised in a motion exclusively under § 3582(c)(2), because § 3582(c)(2) does not provide the court with jurisdiction to entertain such an argument. Id.

         Based on the above, the court holds it lacks jurisdiction to reduce Pielsticker's sentence under § 3582.

         III. ...


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