Menzie v. United States of America

Filing 3

ORDER signed by Judge Pamela Pepper on 9/26/2016 asking the Federal Defender Services of Wisconsin to review the 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) and underlying case, and report to the court by 11/18/2016 whether it intends to file anything on Petitioner's behalf. (cc: all counsel; by US Mail to Petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
STAN MENZIE,

Case No. 16-cv-1275-pp

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________________
ORDER ASKING FEDERAL DEFENDER SERVICES OF WISCONSIN TO
REVIEW PETITION AND UNDERLYING CASE, AND REPORT TO THE
COURT BY NOVEMBER 18, 2016 WHETHER IT INTENDS TO FILE
ANYTHING ON BEHALF OF THE PETITIONER
______________________________________________________________________________
On July 11, 2011, the parties filed an executed plea agreement, in which
the petitioner expressed his intention to plead guilty to conspiracy to possess
with intent to distribute and to distribute cocaine base. United States v.
Menzie, 11-cr-63-pp, Dkt. No. 83. The plea agreement did not recommend that
the plaintiff receive a mitigating role deduction under U.S.S.G. §3B1.2. Id., Dkt.
No. 83 at 5-6. On January 25, 2012, Judge Charles N. Clevert, Jr. sentenced
the petitioner to serve 168 months (fourteen years) in custody. Id. at Dkt. Nos.
158, 161. During the underlying criminal case, the petitioner was represented
by counsel appointed under the Criminal Justice Act. Dkt. No. 31.
On September 23, 2016, the court received the instant motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. §2255. Menzie v. United
States, 16-cv-1275, at Dkt. No. 1. The petition indicates that the petitioner
currently is housed at F.C.I. Pekin, in Pekin, Illinois. Dkt. No. 1 at 1. The brief
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in support of the motion asserts that the petitioner’s sentence should be
vacated and remanded to the district court for re-sentencing, because under
the newly-amended version of U.S.S.G. §3B1.2 (mitigating role), he is entitled
to a sentence reduction. Dkt. No. 2.
On November 1, 2015, Amendment 794 to the mitigating role guideline
(3B1.2) went into effect. See http://www.ussc.gov/guidelinesmanual/amendments-guidelines-manual, pp. 46-49. The Sentencing
Commission stated, in the “Reason for the Amendment” section, that it had
recommended the amendment because courts had been granting the mitigating
role reduction inconsistently and there was a circuit split on the issue Id. at p.
45. The amendment was intended to provided "additional guidance" to courts
in applying the reduction (it addressed "other case law that may be
discouraging courts from applying the adjustment in otherwise appropriate
circumstances"), and the amended version provides a list of factors for courts
to consider. Id.
The petitioner does not state whether received a role-in-the-offense
adjustment, but implies that he did not. Dkt. No. 2 at 3. He argues that under
the new version of the guideline, he clearly is entitled to a minor role reduction.
Id.
The petitioner’s argument assumes several things. First, it assumes that
the amendment—which went into effect on November 1, 2015, three and a half
years after the petitioner was sentenced—applies retroactively. So far, only the
Ninth Circuit Court of Appeals has held that this amendment applies
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retroactively to sentences imposed prior to November 1, 2015. United States v.
Quintero-Leyva, 823 F.3d 519 (9th Cir., May 17, 2016). (The government
conceded retroactive application in that case.) Nor, as Judge Gilbert pointed
out in French v. United States, Case No. 16-cv-1031, 2016 WL 4993379 (S.D.
Ill., September 19, 2016), has any court decided whether the amendment
applies retroactively to collateral attacks (such as §2255 motions) on sentences
imposed prior to November 1, 2015. Finally, it is not clear whether there are
facts in the presentence investigation report that would indicate that the
petitioner would be entitled to the reduction under the new version of the
guideline, even if it does apply retroactively.
Because the petition contains issues of first impression, because the
petitioner filed the petition pro se, and because he was represented by
appointed counsel during his criminal case, the court believes that it would be
helpful for counsel from Federal Defender Services of Wisconsin to review the
underlying criminal case and the petition, and to inform the court whether it
intends to file anything on behalf of the petitioner.
The court ORDERS that, no later than the end of the day on November
18, 2016, Federal Defender Services of Wisconsin either (a) file a supplemental
pleading on the petitioner’s behalf, or (b) file a notice advising the court that it
does not intend to file such a document. After the court receives the Federal

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Defender’s response, it will set a deadline by which the respondent should file a
response.
Dated in Milwaukee, Wisconsin this 26th day of September, 2016.

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