United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
March 25, 2015, the defendant, Emma Leticia Najera, was
sentenced to a term of imprisonment of 121 months for her
role in a conspiracy to distribute methamphetamine. The
following year, Najera filed a motion for reduction of
sentence under 18 U.S.C. § 3582(c)(2) and Amendment 794
to the United States Sentencing Guidelines. The court denied
the defendant's motion on November 4, 2016. Najera has
now filed a motion for reconsideration based on the United
States Court of Appeals for the Fourth Circuit's decision
in United States v. Carbajal, No. 16-4358, 2018 U.S.
App. LEXIS 2378 (4th Cir. Jan. 31, 2018). For the following
reasons, the motion will be denied.
court explained in its previous order, a district court
generally may not modify a term of imprisonment once it has
been imposed unless a defendant is eligible for a reduction
under 18 U.S.C. § 3582(c). United States v.
Goodwvn, 596 F.3d 233, 235 (4th Cir. 2010). Section
3582(c)(2) allows for a reduction if the defendant's
sentence was "based on a sentencing range.that has
subsequently been lowered by the Sentencing Commission,
" and "such reduction is consistent with the
applicable policy statements issued by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2). The
"applicable policy statements" referenced in §
3582(c)(2) are those found in § 1B1.10 of the Sentencing
Guidelines. Dillon v. United States, 560 U.S. 817,
826 (2010). Pursuant to that provision, a sentence reduction
under § 3582(c)(2) is authorized only if "the
guideline range applicable to [the] defendant has
subsequently been lowered as a result of an amendment to the
Guidelines Manual listed in subsection (d) below . . .
." U.S.S.G. § 1B1.10(a)(1).
amendments listed in subsection (d) of § IB 1.10 do not
include Amendment 794. See U.S.S.G. §
1B1.10(d). Consequently, a reduction based on Amendment 794
would not be consistent with the applicable policy statement,
and is therefore not authorized by § 3582(c)(2). See
United States v. McNeill 671 Fed.Appx. 67, 68 (4th Cir.
2016) ("Section 1B1.10(d) of the Guidelines lists the
amendments that receive retroactive application, and this
list does not include Amendment 794. Therefore, Amendment 794
cannot be given retroactive effect in a § 3582(c)(2)
Fourth Circuit's recent decision in Carbajal, on
which Najera relies, does not counsel a different outcome.
That decision involved the direct appeal of a sentence
imposed after Amendment 794 went into effect. Although the
amendment's clarifications applied to the defendant's
request for a minor-participant reduction, the Fourth Circuit
was unable to determine from the record "whether the
district court analyzed [the defendant's] culpability
relative to the average participant in the conspiracy or
considered the factors now listed in the commentary to §
3B1.2." Carbaiah 2018 U.S. App. LEXIS 2378, at
*17. Accordingly, the Fourth Circuit found it appropriate to
vacate the judgment and remand the case for resentencing.
the defendant in Carbajal, Najera is attempting to
collaterally attack the validity of her sentence. On
collateral review, a clarifying amendment applies only if the
Sentencing Commission made it retroactive. See United
States v. Goines, 357 F.3d 469, 480 (4th Cir. 2004)
(holding that "a defendant may rely on a clarifying or
hybrid amendment to support a § 3582(c)(2) motion,
so long as the amendment has been designated for
retroactive application and would result in application
of a sentencing range lower than the range applied at the
original sentencing proceeding") (emphasis added). As
indicated above, Amendment 794 was not made retroactive. See
U.S.S.G. § 1B1.10(d). Accordingly, it does not provide a
basis for relief under § 3582(c)(2).
these reasons, Najera's motion for reconsideration must
be denied. The Clerk is directed to send copies of
this memorandum opinion and the accompanying order to the
defendant and all counsel of record.
Amendment 794 amended the commentary to
§ 3B1.2 of the Sentencing Guidelines, which provides for
varying reductions to a defendant's offense level if the
defendant's participation in the offense was minimal,
minor, or somewhere in between. The amendment took effect on
November 1, 2015, after the defendant's conviction became
In passing, the court notes that even
if Amendment 794 had been designated for retroactive
application, Najera would not be entitled to relief. In
short, based on the evidence before the court and the factors
set forth in the commentary to § 3B1.2, the court
remains convinced that Najera did not play a role in
committing the offense that made her "substantially less
culpable than the average participant in the criminal
activity." U.S.S.G. ...