United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT
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.
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.
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].
support of its motion to dismiss, the United States argues
the court lacks jurisdiction to reduce Pielsticker's
sentence under § 3582. The court agrees.
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2017) (unpublished) (quoting 18 U.S.C. § 3582(c)(2)).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.
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  applies retroactively as a clarifying
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.
on the above, the court holds it lacks jurisdiction to reduce
Pielsticker's sentence under § 3582.