Donahue v. United States of America
Filing
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ORDER AND OPINION entered by Chief Judge James E. Shadid on 11/18/2016 dismissing 1 Motion to Vacate, Set Aside or Correct Sentence (2255). SEE FULL WRITTEN ORDER. (JRK, ilcd)
E-FILED
Friday, 18 November, 2016 03:22:01 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JENNIFER L DONAHUE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-1319
ORDER AND OPINION
This matter is now before the Court on Petitioner Donahue’s § 2255 Motion [1] to Vacate,
Set Aside, or Correct Sentence. For the reasons set forth below, Petitioner Donahue’s Motion [1]
is Dismissed without prejudice.
BACKGROUND
Petitioner Donahue pleaded guilty to one count of Conspiracy to Receive Child
Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). On January 5, 2012, the
undersigned judge sentenced Donahue to 97 months’ imprisonment. United States v. Brewer et
al, No. 11-10036-2 (C.D. Ill. 2012). She did not appeal. On August 26, 2016, Donahue filed this
motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Her motion relies on
the Sentencing Commission’s November 2015 “Amendment 794” to the sentencing commentary
under U.S.S.G. § 3B1.1—which provides for a reduced offense level for defendants who were
minimal or minor participants in the criminal activity—and the Ninth Circuit’s decision in
United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016). This Order follows.
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LEGAL STANDARD
In order to prevail on a motion under § 2255, a federal prisoner must show that their
sentence was imposed in violation of the Constitution or laws of the United States, that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C § 2255; Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). The Court
“may not dismiss a § 2255 motion without an evidentiary hearing unless the record conclusively
shows that the defendant is entitled to no relief.” Id. at 820 (quoting McCleese v. United States,
75 F.3d 1174, 1182 (7th Cir. 1994)).
ANALYSIS
Donahue’s motion argues that Amendment 794 and the Ninth Circuit’s holding in
Quintero-Leyva represent a new rule of law made retroactive by the Sentencing Commission,
and that under the amended § 3B1.1 commentary she would receive a role reduction. See ECF
Doc. 1, at 4. The Ninth Circuit held in Quintero-Leyva that the amended commentary to § 3B1.2
was retroactive to cases on direct appeal. 823 F.3d at 523; Young v. United States, No. 16-3139
(C.D. Ill. 2016). However, the court limited the holding to cases pending on direct appeal, and
specifically declined to address whether the amendment was available to defendants who had
exhausted their direct appeal. Id. at 521. Here, assuming the Seventh Circuit agrees with the
Ninth Circuit that Amendment 794 applies retroactively to cases pending on direct appeal,
Donahue would still not be entitled to relief under § 2255 because she did not appeal and
Amendment 794 has not been held retroactive for collateral review.
Although Donahue is not entitled to relief under § 2255, 18 U.S.C. § 3582(c)(2) allows a
court to modify a term of imprisonment “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
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Sentencing Commission . . . .” Id. Thus, motions seeking a sentence reduction based on
subsequent changes to the Guidelines should be filed as a § 3582 motion in the criminal case.
Young v. United States, No. 16-3139, at *2 (C.D. Ill. 2016) (“[T]he proper avenue for a defendant
seeking a sentence reduction based on an amendment to the Sentencing Guidelines is to file a
motion under 18 U.S.C. § 3582(c)(2).”). Because § 2255 is not the proper vehicle for reducing a
sentence based on a subsequent change to the Guidelines, Donahue’s motion must be dismissed.
If, or when, Amendment 794 becomes available retroactively to defendants who have exhausted
their direct appeal, Donahue should file a § 3582 motion in her criminal case.
CONCLUSION
For the reasons stated above, Petitioner Donahue’s Motion [1] is Dismissed without
prejudice.
This matter is now terminated.
Signed on this 18th day of November, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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