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Horton v. United States

United States District Court, S.D. Ohio, Western Division

March 26, 2018

MICHAEL D. HORTON, Petitioner,



         This 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.

         In 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.

         The 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).

         Horton 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.

         The 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.

         In his 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.

         A 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.

         Horton 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.

         In 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.

         On 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, ...

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