United States District Court, S.D. Ohio, Western Division
MICHAEL D. HORTON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DECISION AND ENTRY OVERRULING PETITIONER'S MOTION
FOR MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT PURSUANT
TO 18 U.S.C. § 3582(C)(2) AND HOLLOWAY V. UNITED STATES
H. RICE, UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Petitioner Michael D.
Horton's Motion for Modification of an Imposed Term of
Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2) and
Holloway v. United States, Doc. #134. The Government
has filed a Memorandum in Opposition, Doc. #135, and
Petitioner has filed a Reply, Doc. #136.
December of 2005, Horton was sentenced to a mandatory minimum
of 240 months in prison after pleading guilty to Conspiracy
to Possess with Intent to Distribute and to Distribute
Heroin, Cocaine Base, and Xanax, which caused the death of
another, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), all in violation of 21 U.S.C. § 846. Horton
maintains that, because the United States Sentencing
Commission has lowered the applicable sentencing range, his
sentence should be modified in accordance with 18 U.S.C.
§ 3582(c)(2). In the alternative, he argues that,
because his work records and discipline records at the prison
are exemplary, and because his rehabilitation efforts have
been extraordinary, the Court should resentence him to a
shorter term of imprisonment.
Court has no authority to modify a previously-imposed term of
imprisonment unless one of the exceptions set forth in 18
U.S.C. § 3582 applies. Horton relies on the exception
set forth in § 3582(c)(2):
(c) Modification of an imposed term of imprisonment.-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
or the Director of the Bureau of Prisons, or on its own
motion, 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).
points to Amendment 782 to the United States Sentencing
Guidelines ("U.S.S.G."), which reduced by two
levels the offense levels assigned to the quantities that
trigger the statutory mandatory minimum penalties in U.S.S.G.
§ 2D1.1, and made parallel changes to U.S.S.G. §
2D1.11. This Amendment is to be applied retroactively. Horton
maintains that Amendment 782 should be applied to reduce his
net offense level by two points.
Government argues, however, that Horton's base offense
level was determined not by the drug quantity tables in
U.S.S.G. § 2D1.1, but by U.S.S.G. § 2D1.1(a)(2),
which provides that if death results from the use of the
controlled substance sold by the defendant, the base offense
level is 38. Amendment 782 did not affect § 2D1.1(a)(2).
See, e.g., United States v. Davila, 651 Fed.Appx.
112, 114 (3d Cir. 2016) (refusing to apply Amendment 782
where defendant's base offense level was determined by
§ 2D1.1(a)(2)). Accordingly, Horton's advisory
sentencing guideline range remains at 360 months to life.
Horton was sentenced to the mandatory minimum sentence of 240
months. Given that Horton's sentencing range was not
lowered by the Sentencing Commission, the Court lacks
authority under § 3582(c)(2) to modify his sentence.
Reply brief, Horton tries to overcome this obstacle by
arguing, for the first time, that the Court erred in its
application of § 2D1.1(a)(2). He maintains that the
Court should have applied § 2D1.1 instead, which would
then permit the Court to modify his sentence in accordance
with Amendment 782.
motion to modify a sentence under §3582(c)(2) is not an
appropriate vehicle for challenging the Court's
application of the Sentencing Guidelines. But even if the
Court were to consider this argument, it lacks merit.
points out that he pled guilty to only the conspiracy count;
the distribution count was dismissed. According to Horton,
because a conspiracy ends when the unlawful act is completed,
his act of selling heroin, which resulted in the death of
another, cannot be considered in determining the applicable
guideline range on the conspiracy charge.
support, Horton cites to United States v. Rebmann,
321 F.3d 540 (6th Cir. 2003). In Rebmann, the
defendant pled guilty to distribution of a small amount of
heroin, in violation of 21 U.S.C. § 841(a) and
(b)(1)(C). At the initial sentencing hearing, the Government
argued that, because defendant's ex-husband died as a
result of this distribution, § 2D1.1(a)(2) should be
applied. The district court found, by a preponderance of the
evidence, that the death had resulted from the distribution,
and sentenced the defendant to 292 months in prison.
appeal, the Sixth Circuit held that the "if death
results" provision of § 841(b)(1)(C) was an element
of the crime that must be proven beyond a reasonable doubt.
See Apprendi v. New Jersey,530 U.S. 466 (2000). It
vacated the sentence and remanded the matter so that the
district court could determine whether the Government had
proven, beyond a reasonable doubt, ...