Schmidt v. USA
Filing
2
OPINION & ORDER denying 1 Motion for Modification of Sentence following a change in the Sentencing Guidelines as to Evan Schmidt. Signed by District Judge James D. Peterson on 11/17/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.
OPINION & ORDER
14-cr-129-jdp
EVAN SCHMIDT,
Defendant.
Defendant Evan Schmidt was convicted of one count of distributing child pornography
in violation of 18 U.S.C. § 2252(a)(2). His advisory sentencing range was 210 to 240 months.
I sentenced him to 96 months of imprisonment, well below the advisory range. Schmidt has
now filed a motion to reduce his sentence in light of a recent amendment to the U.S. Sentencing
Guidelines. Dkt. 38. He styles the motion as one under 28 U.S.C. § 2255, and the court opened
a separate civil case for it (17-cv-858-jdp), but I will construe it as a motion brought under
§ 3582(c)(2), the proper vehicle for a request for a sentence reduction following changes to the
guidelines. See United States v. Monroe, 580 F.3d 552, 558 (7th Cir. 2009).
Schmidt contends that his sentence should be lowered as a result of a 2016 amendment
to § 2G2.2(b)(3)(B) of the guidelines. Section 2G2.2(b)(3)(B) allows for a five-level
enhancement if the distribution of child pornography was in exchange for any valuable
consideration, other than pecuniary gain (which would result in an even greater enhancement).
In 2016, this section was amended to clarify that the enhancement applies only if “the
defendant agreed to an exchange with another person under which the defendant knowingly
distributed to that other person for the specific purpose of obtaining something of valuable
consideration from that other person.” The amendment clarifies “the mental state required . .
. particularly when the case involves a file-sharing program or network.” U.S. Sentencing
Comm’n, Amendments to the Sentencing Guidelines 12 (2016).1 The amendment makes clear that
unwitting distribution, which sometimes results from the use of file-sharing programs, does not
warrant the enhancement.
The 2016 amendment does not allow for a sentence reduction for Schmidt for two
reasons. First, even as amended, § 2G2.2(b)(3)(B) still applies to Schmidt’s conduct. Schmidt
knowingly exchanged child pornography with specific individuals over email—his distribution
was not done unwittingly through the default settings of a file-sharing program, the type of
situation the amendment addressed.
Second, the amendment is not retroactive, and therefore a reduction under
§ 3582(c)(2) is unavailable. See U.S.S.G. § 1B1.10(a)(1), (d). Schmidt argues that the
amendment is retroactive because it is a clarifying amendment. But clarifying amendments do
not allow for sentence reduction under § 3582(c)(2). Rather, clarifying amendments are only
retroactive in the sense that when a court is sentencing a defendant “based on an edition of
the guidelines that is no longer in force” (but that was in force when the offense was
committed), it may use a “clarifying guideline [that] precedes the sentence.” United States v.
Alexiander, 553 F.3d 591, 592 (7th Cir. 2009) (citing U.S.S.G. § 1B1.11(b)(2)). In other words,
were I to sentence Schmidt today, I could refer to the 2016 amendment to § 2G2.2(b)(3)(B)
when applying the 2013 edition of the guidelines. But the amendment would not allow me to
reduce Schmidt’s sentence now, after imposing it.
1
Available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendlyamendments/20160428_RF.pdf.
2
ORDER
IT IS ORDERED that:
1. Defendant Evan Schmidt’s motion for sentence reduction under 18 U.S.C.
§ 3582(c)(2), Dkt. 38, is DENIED.
2. The clerk of court is directed to docket a copy of this order in case number 17-cv858-jdp and administratively close that case.
Entered November 17, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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