United States District Court, N.D. Mississippi, Oxford Division
matter comes before the Court on Danny J. Van
Velkinburgh's ("Defendant") motion for
reduction in term of imprisonment  pursuant to 18
U.S.C.§ 3582 (c)(2). The United States ("the
government") has responded in opposition to the motion
, and the Defendant has filed a reply . The Court,
having considered the submissions of the parties and relevant
case law is now prepared to rule.
& Procedural Background
April 30, 2008, Defendant was sentenced for knowingly
coercing or enticing a minor to engage in illicit sexual
activity in violation of 18 U.S.C. § 2422(b). Defendant
used the internet to contact an individual who he believed
was an underage female. In fact, the individual who he was
having conversations with was an undercover officer.
to the Sentencing Guidelines, Defendant's base offense
level was twenty-eight (28). His Criminal History Category
was I. However, his offense level was enhanced by a total of
four (4) levels. A two (2) level enhancement was added for
"undue influence" pursuant to § 2G1.3(b)(2)(B)
and another two (2) level enhancement was added for "use
of a computer" pursuant to § 2G1.3(b)(3)(A). As
such, Defendant's total offense level was thirty-two
(32), which resulted in a sentencing range of 121-151 months.
Ultimately, Defendant was sentenced to serve 148 months of
imprisonment. Defendant appealed, and the Fifth Circuit Court
of Appeals affirmed his conviction on August 24, 2009.
United States v. Van Velkinburgh, 342 F.Appx. 939
(5th Cir. 2009).
November 1, 2009, approximately two (2) months after
Defendant's appeal, Amendment 732 became effective.
Amendment 732 amended the commentary to U.S.S.G. § 2G1.3
to provide that the undue influence enhancement "does
not apply in a case in which the only 'minor' (as
defined in Application Note 1) involved in the offense is an
undercover law enforcement officer." U.S.S.G.,
Guidelines Manual, Supp. to App. C. (Nov. 2009). On
March 20, 2017,  Defendant filed a motion for
retroactive application of Amendment 732 pursuant to §18
U.S.C. §3582(c). Defendant argues that the Court should
remove the two-point enhancement that was applied under
§ 2G1.3(b)(2)(B) for "undue influence" because
Amendment 732 is a clarifying amendment and therefore should
have retroactive effect. For the reasons set forth
hereinafter, the Court finds that the motion should be
to 18 U.S.C. § 3582 (c), a "court may not modify a
term of imprisonment once it has been imposed" except in
limited circumstances. The applicable portion of § 3582
[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), upon motion of the defendant or
the Director of the Bureau of Prisons, or on its own motion,
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
18 U.S.C. § 3582 (c)(2)(emphasis added). The
aforementioned policy statement is found in 18 U.S.C.
§1B1.10, and it states in relevant part: "A
reduction in the defendant's term of imprisonment is not
consistent with this policy statement and therefore not
authorized under 18 U.S.C. 3582(c)(2) if [n]one of the
amendments listed in subsection (d) is applicable to the
defendant . . ." 18 U.S.C. §1B1.10 (a)(2)(A).
Further, "the court shall substitute only the amendments
listed in subsection (d) for the corresponding guideline
provisions that were applied when the defendant was sentenced
and shall leave all other guideline application decisions
unaffected." 18 U.S.C. §1B1.10 (a)(3)(b)(1).
Subsection (d) of § IB1.10 lists the following
Covered Amendments.-Amendments covered by this policy
statement are listed in Appendix C as follows: 126, 130, 156,
176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488,
490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as
amended by 711, 715, 750 (parts A and C only), and 782
(subject to subsection (e)(1)).
18 U.S.C. §1B1.10(d).
construing this interplay between § 3582(c)(2) and
U.S.S.G. §1B1.10, the Fifth Circuit has held that
"§3582(c)(2) applies only to amendments to
the Guidelines that operate retroactively, as set forth in
the Guidelines policy statement, U.S.S.G. § IB 1.10.
" U.S. v. Drath, 89 F.3d 216, 218
(5th Cir. 1996) (citations omitted); U.S. v.
Anderson, 257 F.Appx. 796, 797 (5th Cir.
2007); U.S. v. Barnum, 310 F.Appx. 684, 685 (5th
Cir. 2009). Therefore, applying the plain language of §
3582(c), a district court is not authorized to reduce a
sentence based on Amendment 732 because doing so would be
inconsistent with Sentencing Commission Policy. See
§ IB 1.10, comment. (n.1 (A)). A review of Fifth Circuit
case law as it pertains to the retroactive effect of
Amendment 732, reveals only one case, U.S. v.
Hatton, 546 F.Appx. 336 (5th Cir. 2013).
There, the Fifth Circuit affirmed the district court's
decision to deny the defendant's resentencing motion
because Amendment 732 is not listed in § 1B1.10(d).
contends that Amendment 732 does not lower the
guideline range but rather clarifies the proper
application of the enhancement, and clarifying amendments do
not have to be listed within § IB 1.10(d) to be given
retroactive effect. This argument is without merit.
"Only on direct appeal, however, ha[s] [the
Fifth Circuit] considered the effect of such a
"clarifying" amendment not in effect at the time
the offense was committed." Drath, 89 F.3d at
217 (emphasis added)(citations omitted). See United
States v. Rodriguez, 306 F.Appx. 147, 148 (5th Cir.
2009) ("except on direct appeal, a clarifying amendment
is not retroactively applied unless the amendment is listed
in § 1B1.10[d]"). Relying on this precedent, and
given that Defendant's appeal was over and his conviction
final at the time Amendment 732 became effective,
Defendant's argument must fail.
is not entitled to resentencing because Amendment 732 is not
listed in U.S.S.G. § IB 1.10(d), and clarifying
amendments that are not listed in that subsection ...