Reed v. USA
RULING AND ORDER denying 1 MOTION to Vacate/Set Aside/Correct Sentence (2255). The Clerk shall enter judgment and close the case. Signed by Judge Stefan R. Underhill on 11/20/2017. (Jamieson, K)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:16-cv-01356 (SRU)
UNITED STATES OF AMERICA,
RULING ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Lamont Reed, a prisoner incarcerated at the Federal Correctional Institution, Beckley, has
moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Mot. Vacate,
Set Aside, or Correct Sentence, Doc. No. 1 (“Mot. Vacate”). Reed argues that Amendment 794
to the United States Sentencing Guidelines—effective after his sentence was imposed—applies
retroactively and entitles him to a reduction in his advisory sentencing range. The government
responds that Amendment 794 does not apply retroactively, and that even if it did, Reed would
not be entitled to a reduction in his sentence. I conclude that Amendment 794—a revision to the
purely advisory Sentencing Guidelines—does not provide a basis for habeas relief under section
2255. Therefore, I dismiss Reed’s habeas petition for lack of jurisdiction.
Standard of Review
Section 2255 provides a prisoner in federal custody an opportunity to challenge the
legality of his or her sentence. To obtain relief under section 2255, the petitioner must show that
his or her prior sentence was invalid because the sentence: (1) was “imposed in violation of the
Constitution or laws of the United States”; (2) was imposed “without jurisdiction” by the
sentencing court; (3) was “in excess of the maximum authorized by law”; or (4) is “otherwise
subject to collateral attack.” 28 U.S.C. § 2255(a). The standard is a high one; even constitutional
errors will not be redressed through a section 2255 petition unless they have had a “substantial
and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84,
87 (2d Cir. 1999) (applying Brecht’s harmless error standard to section 2255 petition).
A section 2255 petition “may not be employed to relitigate questions which were raised
and considered on direct appeal.” Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see
also Reese v. United States, 329 F. App’x 324, 326 (2d Cir. 2009) (quoting United States v.
Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). That limitation prohibits relitigation of issues that were
expressly or impliedly decided on direct appeal. United States v. Ben Zvi, 242 F.3d 89, 95 (2d
Cir. 2001). A court may only reconsider an earlier decision if it is “confronted with ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” United States v. Becker, 502 F.3d 122, 127 (2d Cir.
2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).
Furthermore, a section 2255 petition is “not a substitute for direct appeal.” Harrington v.
United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162,
166 (2d Cir. 2007)). A court will not review claims that the petitioner failed to properly raise on
direct review “unless the petitioner shows (1) good cause to excuse the default and ensuing
prejudice, or (2) actual innocence . . . .” Id. (citing Bousley v. United States, 523 U.S. 614, 622
(1998)). In the context of a habeas petition, “‘actual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley, 523 U.S. at 623.
The petitioner bears the burden of proving, by a preponderance of the evidence, that he is
entitled to relief. See Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995). A district court is
not required to accept the petitioner’s factual assertions as credible “where the assertions are
contradicted by the record in the underlying proceeding.” Puglisi v. United States, 586 F.3d 209,
214 (2009). Section 2255 also requires that the district court hold a hearing on the petitioner’s
motion unless “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). But
“although a hearing may be warranted, that conclusion does not imply that a movant must always
be allowed to appear in a district court for a full hearing if the record does not conclusively and
expressly belie his claim.” Id. (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)).
“If it plainly appears from the [petition], any attached exhibits, and the record of prior
proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the [petition].”
Puglisi, 586 F.3d at 213.
Reed’s current petition was preceded by a criminal case, United States v. Reed, 3:12-cr-
00074 (WWE) (D. Conn.), and an appeal, United States v. Reed, 14-3812 (2d Cir.). Throughout
this section, I use “Cr. Doc.” to refer to docket entries in Reed’s criminal case, and “App. Doc.”
to refer to docket entries in his appeal.
A. Indictment and Plea
On April 9, 2012, Lamont Reed was indicted (along with seventeen others) for
conspiracy to possess with intent to distribute 280 grams or more of a mixture or substance
containing a detectable amount of cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§
841(b)(1)(A)(iii) & 846. Indictment, Cr. Doc. No. 12. The charges were brought after an FBI-led
investigation into drug trafficking in New Haven by a street gang known as the Grape Street
Crips. Final Presentence Report, Cr. Doc. No. 877, at 6 (“PSR”).
On November 7, 2013, Reed pled guilty before United States Magistrate Judge Holly B.
Fitzsimmons, pursuant to a written plea agreement, to the lesser included offense of conspiracy
to possess with intent to distribute 28 grams or more of a mixture or substance containing a
detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) & 846. See Plea
Agreement, Cr. Doc. No. 673. Judge Fitzsimmons issued findings and recommended that Reed’s
guilty plea be accepted by the court. Findings & Recommendation, Cr. Doc. No. 674.
A presentence report was ordered and prepared by the United States Probation Office,
which calculated Reed’s advisory sentencing guidelines using the 2013 Guidelines manual.
Because Reed’s conduct “conservatively include[d] at least 203 grams of cocaine base,” the
Probation Office calculated a base offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5)
(offense involving distribution of at least 196 grams, but less than 280 grams, of cocaine base).
PSR, Cr. Doc. No. 877, at 11. The Probation Office subtracted three levels for acceptance of
responsibility, resulting in a total offense level of 27. Id. at 12. Reed’s criminal convictions were
calculated to yield a criminal history score of 17, which placed Reed in criminal history category
VI. Id. at 17. Reed’s advisory guideline range therefore was 130 to 162 months. Id. at 23. The
Probation Office noted, however, that the Sentencing Commission had issued a proposal for
public comment—subsequently adopted as Amendment 782—that would reduce Reed’s total
offense level to 25, which would result in an advisory guideline range of 110 to 137 months. Id.
at 25. In its presentencing memorandum, the government did not object to that reduction of
Reed’s total offense level, see Gov’t’s Sentencing Mem., Cr. Doc. No. 887, and the Court used a
total offense level of 25 at sentencing. See Sentencing Hr’g Tr., Cr. Doc. No. 1014, at 35.
On September 4, 2014, United States District Judge Warren W. Eginton accepted Reed’s
proposed guilty plea. Id. at. Judge Eginton then heard argument from counsel and a statement by
Reed. Reed’s counsel extensively addressed “Reed’s involvement” in the criminal conspiracy,
and contended that Reed “was only on the phone discussing” crack cocaine and “looking for
connections.” Sentencing Hr’g Tr., Cr. Doc. No. 1014, at 7. Reed, his counsel emphasized,
“wasn’t pounding the streets, [and] wasn’t distributing anything.” Id. He “was never . . . alleged
as a member of the Grape Street Grips,” and “was never . . . alleged [to have participated] in any
hand-to-hand transactions.” Id. at 8. Reed’s attorney also noted that other defendants in Reed’s
case who were “gang member[s], . . . drug dealer[s], . . . [and] shooter[s] for the gang” had
received sentences ranging between 18 and 64 months. See id. at 9–10. Judge Eginton
acknowledged that of the “13 [defendants] sentenced” in Reed’s case, “none of them were close
to [Reed’s guideline minimum of] 110 months,” but he explained that the apparent disparity was
due to Reed’s “past history” and extensive criminal record. Id. at 10, 13; see also id. at 18, 22–23
(Reed’s criminal record was “why there seem[ed] to be a disparity . . . between what [Judge
Eginton] did with 13 others and what [he] should be doing here.”).
The government disputed Reed’s attorney’s characterization of Reed as a minor
participant. The Assistant United States Attorney argued that Reed “was a substantial player in
[the] drug operation,” and that Reed and the leader of the Grape Street Crips “pooled their
money together several times a week to purchase wholesale quantities of cocaine.” Id. at 15.
“[T]he suggestion that  Reed . . . didn’t play a significant role . . . [was] actually inaccurate,”
asserted the government. Judge Eginton “agree[d] with the government” that Reed’s role in the
offense was not insignificant, and added that he thought “[P]robation agree[d] with the
government,” as well. Id. at 16.
Reed then made a statement to Judge Eginton, in which he argued that he was “not
responsible for  203 grams” of crack cocaine, “was [not] a substantial player,” and was “no bigtime drug dealer.” Id. at 27–28. Reed’s insistence that he was “not responsible for 203 grams”
led his attorney to follow up that Reed did not “want to withdraw his plea.” Id. at 30. Reed
clarified that he was not seeking to withdraw his plea and was willing to be sentenced “based
upon the involvement of 203 grams of cocaine base.” See id. at 33.
Judge Eginton proceeded to calculate Reed’s advisory guidelines, address the
considerations of 18 U.S.C. § 3553(a), and impose a sentence. He began with the base offense
level of 30 for 203 grams of crack cocaine. Id. at 35; see U.S.S.G. § 2D1.1(c)(5). He reduced
three levels for acceptance of responsibility and two levels to account for the proposed
amendment to the Sentencing Guidelines, but did not reduce any levels for role in the offense.
Sentencing Hr’g Tr., Cr. Doc. No. 1014, at 35. The result, Judge Eginton calculated, was a total
offense level of 25, which, in conjunction with criminal history category VI, produced an
advisory guideline range of 110 to 137 months. Id.
For the reasons set forth by Reed’s attorney—evidently, Reed’s comparatively minor role
in the conspiracy, lack of gang membership, efforts to pursue education since his arrest, and
difficult childhood, see id. at 7–13—Judge Eginton elected to sentence Reed to the bottom of the
Guidelines range, 110 months, followed by a mandatory term of four years of supervised release.
Id. at 35. Judgment entered on September 5, 2014. Judgment, Cr. Doc. No. 975.
C. Direct Appeal
Reed appealed his sentence on October 3, 2014. Notice of Cr. App., App. Doc. No. 1.
Reed was represented by counsel on appeal, and also filed several documents pro se. Reed’s
attorney’s brief again argued that “Reed’s involvement was starkly minimal” and—“[w]hen
compared to level of involvement of his co-defendants”—“extremely minimal,” and contended
that “the district court failed to consider the significance of  Reed’s minimal role in the offense
when imposing his sentence.” Appellant’s Br., App. Doc. No. 25, at 13, 23, 26. “Reed’s limited
participation in the offense,” counsel asserted, “was a mitigating factor that should have been
considered by the district court when imposing his sentence.” Id. at 26. Reed’s attorney also
specifically invoked the Sentencing Guidelines departure for “limited participation in an
offense.” See id. (citing U.S.S.G. § 3B1.2). The government argued in response that Reed did not
claim that “he was entitled to a role reduction under U.S.S.G. § 3B1.2” during the district court
proceedings, and that “[i]n any event, the court did not ignore Reed’s . . . ‘minor role’
argument.” Gov’t’s Br., App. Doc. No. 38, at 38–40. Although Judge Eginton “may not have
explicitly addressed the minor role argument in [his] discussion of the § 3553(a) factors,” he was
not required to do so by Second Circuit precedent, and Judge Eginton reasonably concluded that
“Reed’s claim that he played a ‘minor role’ [was] not supported by the record.” Id. at 41–42.
The Second Circuit affirmed Reed’s sentence by summary order on October 16, 2015.
United States v. Reed, 629 F. App’x 19 (2d Cir. 2015). With regard to Reed’s contention that
“the District Court failed to consider . . . Reed’s limited role in the enterprise,” the Second
Circuit “disagree[d].” Id. at 21. “Judge Eginton clearly stated his agreement with the
government’s contention that Reed’s role was not minor, but nonetheless set the sentence at the
bottom of the Guidelines range based on defense counsel’s arguments.” Id. The Court also
rejected Reed’s argument that his sentence was substantively unreasonable due to “his limited
participation in the offense.” Id. at 22. “The District Court,” the Second Circuit held, “was well
within its discretion to conclude . . . that Reed substantially participated in a serious offense and
that the bottom of the Guidelines range was sufficient to achieve the goals of § 3553(a).” Id. at
22–23. Therefore, the Court affirmed Reed’s sentence in all respects. The mandate issued on
November 16, 2015. App. Doc. No. 101.
D. Section 2255 Petition
Reed filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255 on August 10, 2016.1 Doc. No. 1. I issued an order on January 4, 2017 requiring the
government to show cause why the relief prayed for in the petition should not be granted. Doc.
No. 3. The government responded to the petition on February 6, 2017. Doc. No. 4. Because
Reed’s petition relied on a pure issue of law, I exercised my discretion to decide the motion
without an evidentiary hearing. See Morales v. United States, 635 F.3d 39, 45 (2d Cir. 2011).
As the sole basis for granting his habeas petition, Reed asserts that Judge Eginton should
have reduced Reed’s Guidelines offense level by two points to reflect his minor role in the
offense. Mot. Vacate Sentence, Doc. No. 1, at 4. The relevant provision of the Sentencing
Guidelines, U.S.S.G. § 3B1.2 (Mitigating Role), provides as follows:
Based on the defendant’s role in the offense, decrease the offense level as
(a) If the defendant was a minimal participant in any criminal activity,
decrease by 4 levels.
As an initial matter, Reed’s habeas petition was timely. “A motion . . . under 28 U.S.C. § 2255
is subject to a one-year time limitation that generally runs from ‘the date on which the judgment
of conviction becomes final,’” and “a judgment of conviction becomes final when the time
expires for filing a petition for certiorari contesting the appellate court’s affirmation of the
conviction.” Clay v. United States, 537 U.S. 522, 524–25 (2003). Supreme Court Rule 13.1
provides that “a petition for a writ of certiorari to review a judgment . . . is timely when it is filed
with the Clerk of th[e] Court within 90 days after entry of the judgment.” Sup. Ct. R. 13.1.
Because Reed did not file a petition for certiorari, he was required to file his section 2255 motion
within one year of 90 days after judgment, i.e., before January 14, 2017. He did so.
(b) If the defendant was a minor participant in any criminal activity,
decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
The United States Sentencing Commission amended the commentary to (but not the text
of) section 3B1.2 with an effective date of November 1, 2015. See U.S.S.G., Supp. App’x C, at
116 (“Amd. 794”). Amendment 794 was promulgated after the Commission “conducted a review
of cases . . . [and] found that mitigating role [was] applied inconsistently and more sparingly than
the Commission intended.” Amd. 794 at 117. The amendment clarified that “when determining
mitigating role, the defendant is to be compared with the other participants in the criminal
activity,” and added a “non-exhaustive list of factors for the court to consider in determining
whether to apply a mitigating role adjustment and, if so, the amount of the adjustment.” Id. at
117–18 (internal quotation marks omitted). Those factors are:
(i) the degree to which the defendant understood the scope and structure of
the criminal activity;
(ii) the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal
Id. at 116. Reed identifies a case in which the Ninth Circuit—later joined by other circuits—held
that Amendment 794 is a “clarifying amendment” that should be applied retroactively. Mot.
Vacate Sentence, Doc. No. 1, at 4 (citing United States v. Quintero-Levya, 823 F.3d 519 (9th Cir.
2016)). He argues that Amendment 794 makes clear that he is entitled to a two-level reduction
and that he should be “re-sentence[d] . . . accordingly.” Id. at 5.
The government responds that Amendment 794 is only retroactively applicable on direct
appeal, not (as here) on collateral review. Gov’t’s Resp., Doc. No. 4, at 1. Even if the
amendment were applicable on collateral review, moreover, the government contends that Reed
would not be entitled to the two-level reduction. Id.
I agree that Reed’s petition must be dismissed, but on grounds other than those raised by
the government. Reed does not present a viable claim that his “sentence was imposed in violation
of the Constitution or laws of the United States, . . . or that the sentence was in excess of the
maximum authorized by law.” Cf. 28 U.S.C. § 2255. The Sentencing Guidelines are advisory,
and even a sentence above the Guidelines range (which Reed’s was not) would neither be
“imposed in violation of the Constitution or laws of the United States” nor “exce[ed] . . . the
maximum authorized by law.” Id. Liberally construed as a motion for resentencing under 18
U.S.C. § 3582(c)(2), Reed’s petition also fails, because Amendment 794 is not listed as a
retroactive amendment under U.S.S.G. § 1B1.10. Therefore, Reed cannot establish relief under
either section 2255 or section 3582, and I dismiss his petition for writ of habeas corpus. See
Puglisi, 586 F.3d at 213.
A. Jurisdiction Under 28 U.S.C. § 2255
“[C]ollateral attack on a final judgment in a criminal case is generally available under
[section] 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an
error of law or fact that constitutes ‘a fundamental defect which inherently results in complete
miscarriage of justice.’” Graziano v. United States, 83 F.3d 587, 589–90 (2d Cir. 1996) (per
curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). Because “[d]irect review
is the principal avenue for challenging a conviction,” section 2255 proceedings are “secondary,”
“limited,” and subject to “procedural restrictions.” Brecht, 507 U.S. at 633; See Reed v. Farley,
512 U.S. 339, 355, 358 (1994) (Scalia, J., concurring in part and concurring in the judgment).
“[N]ot ‘every asserted error of law can be raised on a § 2255 motion.’” Napoli v. United States,
32 F.3d 31, 35 (2d Cir. 1994) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)),
amended on reh’g on other grounds, 45 F.3d 680 (2d Cir. 1995). “The grounds provided [for
relief] in section 2255 . . . are narrowly limited, and it has ‘long been settled law that an error that
may justify reversal on direct appeal will not necessarily support a collateral attack on a final
judgment.’” Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).
“[U]nless the claim alleges a lack of jurisdiction or constitutional error”—neither of
which Reed raises here—“an error of law does not provide a basis for collateral attack unless the
claimed error constituted ‘a fundamental defect which inherently results in a complete
miscarriage of justice.’” Addonizio, 442 U.S. at 185 (quoting Hill v. United States, 368 U.S. 424,
428 (1962)); Graziano, 83 F.3d at 590 (applying “fundamental defect” standard to “claims
regarding a sentencing court’s error in failing to properly apply the Sentencing Guidelines”).
Reed bears the burden of showing that Judge Eginton’s failure to apply Amendment 794
constituted a “fundamental defect.” See Napoli, 45 F.3d at 683. He cannot do so.
First, Judge Eginton did not “misappl[y] . . . the Sentencing Guidelines” because the
Guidelines calculation was correct when Reed’s sentence was imposed. See Graziano, 83 F.3d at
590. At the time Reed was sentenced, Amendment 794 had not come into effect, and “a court
must sentence under the guideline provision in effect on the date of sentencing.” Rodriguez-
Alonso v. United States, 807 F. Supp. 21, 22 (E.D.N.Y. 1992). Thus, Reed cannot “claim that
th[e] court erred in imposing the sentence.”2 See id.
Second, even had Judge Eginton miscalculated Reed’s Guidelines range, courts agree that
“[b]arring extraordinary circumstances, . . . an error in the application of the Sentencing
Guidelines cannot be raised in a [section] 2255 proceeding.” United States v. Foote, 784 F.3d
931, 940 (4th Cir. 2015). The Sentencing Guidelines are “advisory” and “do not constrain
[courts’] discretion.” Beckles v. United States, __ U.S. __, 137 S. Ct. 886, 894 (2017). As a
result, misapplication of the Sentencing Guidelines generally “do[es] not amount to a ‘complete
miscarriage of justice.’” See Graziano, 83 F.3d at 590; see, e.g., United States v. Mikalajunas,
186 F.3d 490, 496 (4th Cir. 1999) “[A] misapplication of the [G]uidelines typically does not
constitute a miscarriage of justice.”); Burke v. United States, 152 F.3d 1329, 1332 (11th Cir.
1998) (“[A] claim that the sentence imposed is contrary to a post-sentencing clarifying
amendment is a non-constitutional issue that does not provide a basis for collateral relief in the
absence of a complete miscarriage of justice.”); Scott v. United States, 997 F.2d 340, 342 (7th
Cir. 1993) (“deviation from the [advisory] Guidelines” does not cause a “miscarriage of
justice”). Even were Reed to be resentenced in light of Amendment 794, “the district court could
impose the same sentence again.” Spencer v. United States, 773 F.3d 1132, 1140 (11th Cir.
2014) (en banc). And because “the system of purely discretionary sentencing that predated the
Guidelines was constitutionally permissible,” Beckles, 137 S. Ct. at 894, “errors in the
When the range provided by the current Sentencing Guidelines is higher than the range in
effect when the offense was committed, an ex post facto violation may occur. See United States
v. Peugh, __ U.S. __, 133 S. Ct. 2072, 2084 (2013). That scenario obviously differs from Reed’s
case, when the range was lowered after Reed committed his crime and was sentenced.
An ex post facto violation may occur when a defendant is sentenced under Guidelines providing
a higher range than was in effect when the crime was committed.
administration of a system that curtails discretion cannot be ‘inconsistent with the rudiments of
fair procedure.’” Scott, 997 F.2d at 342. Therefore, “a fundamental defect or complete
miscarriage of justice” cannot occur “in a situation in which [the defendant] was . . . sentenced
under an advisory Guidelines scheme.”3 See Foote, 784 F.3d at 941.
After considering the decisions by the Second Circuit and other Courts of Appeals, I
agree that “a defendant seeking to apply a post-sentencing clarifying amendment on collateral
review must . . . demonstrate that the court’s failure to consider his argument will result in a
miscarriage of justice.” Cook v. United States, 2006 WL 3333068, at *9 (S.D.N.Y. Nov. 15,
2016); see Sanchez v. United States, 1993 WL 267310, at *2 (S.D.N.Y. July 13, 1993) (“[I]n
order to justify relief under section 2255, [the defendant] must demonstrate that the Court’s
failure to sentence him as a minor participant was a fundamental defect that resulted in a
complete miscarriage of justice.”). Here, Reed has not shown “an error . . . sufficiently
fundamental to come within th[o]se narrow limits.” See Addonizio, 442 U.S. at 184–85.
Reed’s sentencing proceedings simply “w[ere] not infected with any error of fact or law
of the ‘fundamental’ character that renders the entire proceeding[s] irregular and invalid.” Id. at
186. Judge Eginton did not err by declining to reduce Reed’s Guidelines offense level by two
points, because Amendment 794 was not yet in effect. Moreover, even had Judge Eginton
miscalculated Reed’s offense level, the resulting Guidelines range was purely advisory. Because
Courts have suggested that a Guidelines error might result in a “complete miscarriage of
justice” if the sentence “exceeded the statutory maximum sentence Congress ha[d] enacted.”
Spencer v. United States, 773 F.3d 1132, 1143 (11th Cir. 2014) (en banc); see United States v.
Foote, 784 F.3d 931, 943 (4th Cir. 2015) (When the “[defendant]’s sentence did not exceed the
statutory maximum, his erroneous [Guidelines] classification did not rise to the level of a
‘fundamental’ defect.”). Of course, in such a situation, section 2255 relief would be available
anyway, because the sentence would be “in excess of the maximum authorized by law.” See 28
U.S.C. § 2255(a).
Judge Eginton “sentenced [Reed] ‘within the statutory limits,’” any error in the process by which
he calculated the Guidelines—even if it “affected the ultimate sentence imposed”—“did not
affect the lawfulness of the sentence itself.” Foote, 784 F.3d at 943 (emphasis added) (brackets
omitted) (quoting Addonizio, 442 U.S. at 187). Bearing in mind “society’s strong interest in the
finality of criminal convictions,” I cannot conclude that Judge Eginton’s “failure to sentence
[Reed] as a minor participant was a fundamental defect that resulted in a complete miscarriage of
justice.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010); Sanchez, 1993 WL
267310, at *2. Therefore, Reed fails to establish his entitlement to relief under section 2255, and
I dismiss his petition for a writ of habeas corpus. See Puglisi, 586 F.3d at 213.
B. Jurisdiction Under 18 U.S.C. § 3582(c)
Due to the obligation to construe pro se pleadings liberally, “[w]here a pro se prisoner
improperly files a [section] 2255 petition seeking sentencing reduction pursuant to a Guidelines
amendment, a court should construe the petition as a motion for resentencing under 18 U.S.C. §
3582(c)(2).” United States v. Mercado, 2017 WL 830967, at *1 n.2 (E.D. Wash. Mar. 2, 2017)
(citing Martin v. United States, 834 F. Supp. 2d 115, 136 (E.D.N.Y. 2011)). Hence, I will also
consider whether Reed is entitled to relief under section 3582(c)(2). That statute provides:
The court may not modify a term of imprisonment once it has been
imposed except that . . . 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), . . . 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). “The relevant policy statement” for purposes of section 3582(c)(2) “is
U.S.S.G. § 1B1.10,” which “lists the amendments that the Commissioner has made retroactive.”
United States v. Rivera, 662 F.3d 166, 170–71 (2d Cir. 2011). That “binding policy statement . . .
places considerable limits on district court discretion,” and “[a] court’s power under [section]
3582(c)(2) . . . depends in the first instance on the Commission’s decision not just to amend the
Guidelines but to make the amendment retroactive.” Freeman v. United States, 564 U.S. 522,
531 (2011) (plurality opinion); Dillon v. United States, 560 U.S. 817, 826 (2010).
Amendment 794 is not among those listed in section 1B1.10 of the Sentencing
Guidelines. See U.S.S.G. § 1B1.10. “Because Amendment 794 is not listed among the retroactive
amendments in U.S.S.G. § 1B1.10(d), Amendment 794 does not authorize a reduction in
[petitioner]’s term of imprisonment under § 3582(c)(2).” United States v. Barker, 2017 WL
417141, at *2 (M.D. Fl. Jan. 28, 2017); accord Calderon v. United States, 2016 WL 7742746, at
*1 (S.D.N.Y. Dec. 28, 2016) (“Amendment 794 is not listed in [section] 1B1.10 and therefore
does not apply retroactively.”); United States v. Morales-Perez, 2016 WL 6426394, at *2
(S.D.N.Y. Oct. 27, 2016) (“The Guidelines Manual lists the amendments that the Sentencing
Commission has decided shall be applied retroactively, and Amendment 794 is not listed.”).
Thus, I “lack jurisdiction to amend [Reed]’s term of imprisonment based on Amendment 794.”
See Kemp v. United States, 2017 WL 455403, at *1 (E.D.N.C. Feb. 2, 2017); accord United
States v. Timm, 2017 WL 364603, at *4 n.3 (D. Kan. Jan. 25, 2017) (“Because the United States
Sentencing Commission has not specifically designated Amendment 794 for retroactive
application, the Court has no authority to apply the amendment to defendant’s case under Section
3582(c)(2).”). Construed as a motion to resentence, Reed’s motion still must be dismissed.
Under either section 2255 or section 3582(c), Amendment 794 does not apply
retroactively on collateral review. Although the need to deny Reed’s petition in order to
safeguard the value of finality may be less apparent here than in other cases,4 “the guidance of
the Supreme Court and Congress is clear and . . . ties [my] hands.” See Foote, 784 F.3d at 944.
Therefore, I deny Reed’s motion to vacate his sentence for lack of subject matter jurisdiction.
The Clerk shall enter judgment and close the case.
Dated at Bridgeport, Connecticut, this 20th day of November 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
The Supreme Court has identified the “reasons for narrowly limiting the grounds for collateral
attack on final judgments” as follows: (1) “Inroads on the concept of finality tend to undermine
confidence in the integrity of our procedures”; (2) “[I]ncreased volume of judicial work
associated with the processing of collateral attacks inevitably impairs and delays the orderly
administration of justice”; and (3) “Because there is no limit on the time when a collateral attack
may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the
attack is successful.” United States v. Addonizio, 442 U.S. 178, 184 & n.11 (1979). Here, Reed’s
petition was timely filed pursuant to the strict limitations of section 2255. The petition also
presents a pure issue of law, which can be resolved on the papers without an evidentiary hearing.
And because Amendment 794 went into effect immediately after the Second Circuit upheld
Reed’s sentence—and applies retroactively on direct appeal—Reed may have been entitled to
reconsideration of the Second Circuit’s decision, had he moved for it.
I consider it unfortunate that Reed lost what may have been a viable claim under
Amendment 794 because he petitioned for a writ of habeas corpus rather than moving for
appellate reconsideration. Nevertheless, I do not think that Reed’s attorney’s decision not to
move for reconsideration—perhaps because the language of the Second Circuit’s summary order
indicated that he would be unsuccessful—“fell below an objective standard of reasonableness,”
as required to justify a claim of ineffective assistance of counsel. See Padilla v. Kentucky, 559
U.S. 356, 366 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)); cf. Cook v.
United States, 2006 WL 3333068, at *11 (S.D.N.Y. Nov. 15, 2016) (deeming counsel ineffective
when “[n]ot only did Cook’s appellate counsel fail to raise Amendment 503, but he [also] failed
to reassert sentencing counsel’s argument that Cook could not be held responsible for quantities
of heroin before he joined the conspiracy”). Despite my sympathy for Reed’s situation, his case
is not the rare one “in which ‘a fundamental miscarriage of justice would result from a failure to
entertain the claim.’” See Underwood v. United States, 166 F.3d 84, 88 (2d Cir. 1999) (quoting
McCleskey v. Zant, 499 U.S. 467, 495 (1991)).
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