United States District Court, N.D. Ohio, Eastern Division
DANIEL R. PEASE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
CHRISTOPHER A. BOYKO United States District Judge
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§2255 (ECF #27). The Government filed a Response in
Opposition to Petitioner's Motion (ECF#29). For the
following reasons, the Court denies Petitioner's
was indicted on June 2, 2009 by a federal grand jury for
Receipt and Distribution of Visual Depictions Involving Real
Minors Engaged in Sexually Explicit Conduct, Receipt and
Distribution of Child Pornography and Possession of Child
Pornography. Petitioner pled guilty to the Indictment and on
February 25, 2010, the Court sentenced Petitioner to a
156-month term of imprisonment on Counts One and Two and a
120-month term of imprisonment on Count Three, to be served
concurrently. Petitioner filed a Notice of Appeal on March 3,
2010. Petitioner then filed a Motion to Voluntarily Dismiss
the Appeal, which was granted by the Court of Appeals on
April 1, 2010.
October 30, 2017, Petitioner filed the instant Motion to
Vacate, Set Aside or Correct Sentence requesting a sentence
reduction based on Sentencing Commission Guideline
Amendments. On January 9, 2018, Respondent filed a Response
in Opposition to Petitioner's Motion.
2255 of Title 28, United States Code, provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
order to prevail upon a §2255 motion, the movant must
allege as a basis for relief: ‘(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding invalid.
'” Mallett v. United States, 334 F.3d
496-497 (6th Cir. 2003), quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir.2001).
argues that the November 1, 2016, amendments to the United
States Sentencing Guidelines (Amendment 801) apply
retroactively through 18 U.S.C. §3582(c)(2) to allow the
Court to modify his 156 month sentence. Under 18 U.S.C.
(c) The court may not modify a term of imprisonment once is
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,
…if such a reduction is consistent with applicable
policy statement issued by the Sentencing Commission.
States Sentencing Guidelines Section 1B1.10 only permits the
court to reduce the defendant's term of imprisonment as
provided by § 3582(c)(2) if the guideline range
applicable to the defendant has been subsequently lowered by
an amendment listed in subsection (d) of the policy
statement. In this ...