United States of America v. Gibson

Filing 12

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/21/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

United States,

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Plaintiff

v.
Harrington Gibson,
Defendant

No. 16 C 7842

Memorandum Opion and Order
Harrington Gibson, who on July 2, 2013, pleaded guilty to a
charge of distributing 280 grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1), has moved under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. He argues
that Amendment 794 to the Sentencing Guidelines, which amended
§ 3B1.2

of

the

Guidelines,

entitles

him

to

a

“minor

role”

sentence reduction. I deny the motion for the following reasons.
Gibson was sentenced on December 23, 2013, almost two years
before Amendment 794 was issued on November 1, 2015. While it is
true that in U.S. v. Quintero-Leyva, the Ninth Circuit held that
Amendment
F.3d

519,

elsewhere

794
523
have

“applies
(9th

retroactively

Cir.

uniformly

2016),
held

to

courts
that

it

direct
in

appeals,”

this

not

823

district

and

retroactive

on

collateral review. See, e.g., United States v. Ozuna, No. 16 C
9822, 2017 WL 622423 (N.D. Ill. Feb. 15, 2017) (Darrah, J.);
Lindsey v. United States, No. 16 C 878, 2017 WL 283384 (S.D.
Ill. Jan. 23, 2017) (Gilbert, J.); Donahue v. United States, No.
16 C 1319, 2016 WL 6833919 (C.D. Ill. Nov. 18, 2016) (Shadid,
CJ.); Johnson v. United States, No. 16 C 528, 2016 WL 6084018
(S.D. Ohio, Oct. 17, 2016) (collecting cases). As the government
points out, and as many of the foregoing cases noted, Amendment
794 is not listed among the retroactive amendments in U.S.S.G.
§ 1B1.10(d).

Defendant

has

offered

no

reason

to

depart

from

these authorities.
The government also responds that even if Amendment 794
were

retroactive,

appropriate

18

avenue

U.S.C.

for

§ 3582,

the

relief

not

§ 2255,

defendant

is

the

seeks.

The

government goes on to argue that a motion under § 3582 would
fail because defendant was originally sentenced to 56 months’
imprisonment, which is below the 57-71 month adjusted range that
would apply if he received the maximum possible adjustment under
§ 3B1.2.

Defendant

has

filed

no

reply

responding

to

the

motion

is

government’s argument.
For

the

foregoing

reasons,

defendant’s

§ 2255

denied, and I decline to issue a certificate of appealability.

2

ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: February 21, 2017

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