USA v. Soeby

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT'S
) MOTION TO REDUCE SENTENCE
vs. )
)
Joshua David Soeby, ) Case No. 3:18-cr-101
)
Defendant. )
_______________________________________________________________________________
Before the Court is the Defendant’s pro se motion to reduce sentence under 18 U.S.C. §
3582(c)(2), filed on February 26, 2024. See Doc. No. 92. The Government filed a response in
opposition to the motion on March 25, 2024. See Doc. No. 95. For the reasons set forth below, the
motion is denied.
I. BACKGROUND
In 2018, a federal grand jury charged the Defendant with conspiracy to distribute and possess
with intent to distribute controlled substances resulting in serious bodily injury and death. See Doc.
No. 17. On March 8, 2019, the Defendant pled guilty pursuant to a written plea agreement with the
Government. See Doc. No. 54.
The Presentence Investigation Report (“PSR”) calculated a total offense level of 40. See Doc.
70, ¶ 23. The Defendant had 4 scorable criminal history points. See Doc. No. 70, ¶ 37. He received
2 additional points pursuant to U.S.S.G. § 4A1.1(d) because he was under a criminal justice sentence
at the time of the offense. See Doc. No. 70, ¶ 38. With 6 criminal history points he fell into criminal
history category III. See Doc. No. 70, ¶ 39. An offense level of 40 and criminal history category III
yields an advisory Sentencing Guideline range of 360 months to life. See Doc. No. 70, ¶ 90. The
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charge to which the Defendant pled guilty carried a mandatory minimum sentence of 20 years. See
Doc. No. 70, ¶ 89. On June 13, 2019, the Court adopted the PSR without change and sentenced the
Defendant to 144-months of imprisonment. See Doc. Nos. 84 and 85.
On February 26, 2024, the Defendant filed a pro se motion seeking a sentence reduction under
18 U.S.C. § 3582(c)(2) and Parts A and B of Amendment 821. See Doc. No. 92. The Government
filed a response in opposition to the motion contending he was not eligible for a sentence reduction.
See Doc. No. 95. The Defendant is serving his sentence at FPC Yankton, in Yankton, South Dakota.
He has a presumptive release date of August 29, 2028.
II. LEGAL DISCUSSION
Under the federal sentencing scheme, sentence modifications are available under very limited
circumstances. One circumstance in which a sentence reduction is permitted is when the applicable
Sentencing Guideline range has been lowered by the Sentencing Commission and it makes the
amendment retroactive. See 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) of Title 18 of the United
States Code provides as follows:
[I]n 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 Sentencing Commission.
18 U.S.C. § 3582(c)(2).
The applicable Sentencing Commission policy statement provides as follows:
(a) AUTHORITY.--
(1) IN GENERAL.--In a case in which a defendant is serving a term of
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imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines Manual listed in subsection (d) below, the court may reduce
the defendant's term of imprisonment as provided by 18 U.S.C. §
3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction
in the defendant's term of imprisonment shall be consistent with this
policy statement.
(2) EXCLUSIONS.--A reduction in the defendant's term of imprisonment
is not consistent with this policy statement and therefore is not
authorized under 18 U.S.C. § 3582(c)(2) if–
(A) none of the amendments listed in subsection (d) is applicable
to the defendant; or
(B) an amendment listed in subsection (d) does not have the effect
of lowering the defendant's applicable guideline range.
(3) LIMITATION.--Consistent with subsection (b), proceedings under 18
U.S.C. § 3582(c)(2) and this policy statement do not constitute a full
resentencing of the defendant.
(b) DETERMINATION OF REDUCTION IN TERM OF IMPRISONMENT.--
(1) IN GENERAL--In determining whether, and to what extent, a
reduction in the defendant's term of imprisonment under 18 U.S.C. §
3582(c)(2) and this policy statement is warranted, the court shall
determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed
in subsection (d) had been in effect at the time the defendant was
sentenced. In making such determination, 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.
(2) LIMITATION AND PROHIBITION ON EXTENT OF
REDUCTION.--
(A) LIMITATION.--Except as provided in subdivision (B), the
court shall not reduce the defendant's term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline
range determined under subdivision (1) of this subsection.
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(B) EXCEPTION FOR SUBSTANTIAL ASSISTANCE.--If the
term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government
motion to reflect the defendant's substantial assistance to
authorities, a reduction comparably less than the amended
guideline range determined under subdivision (1) of this
subsection may be appropriate.
(C) PROHIBITION.--In no event may the reduced term of
imprisonment be less than the term of imprisonment the
defendant has already served.
(c) CASES INVOLVING MANDATORY MINIMUM SENTENCES AND
SUBSTANTIAL ASSISTANCE.--If the case involves a statutorily required
minimum sentence and the court had the authority to impose a sentence below
the statutorily required minimum sentence pursuant to a government motion
to reflect the defendant’s substantial assistance to authorities, then for purposes
of this policy statement the amended guideline range shall be determined
without regard to the operation of § 5G1.1 (Sentencing on a Single Count of
Conviction) and § 5G1.2 (Sentencing on Multiple Counts of Conviction).
(d) 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), 782 (subject to
subsection (e)(1)), and 821 (parts A and B, subpart 1 only and subject to
subsection (e)(2)).
(e) SPECIAL INSTRUCTIONS.--
(1) The court shall not order a reduced term of imprisonment based on
Amendment 782 unless the effective date of the court's order is
November 1, 2015, or later.
(2) The court shall not order a reduced term of imprisonment based on Part
A or Part B, Subpart 1 of Amendment 821 unless the effective date of
the court's order is February 1, 2024, or later.
U.S.S.G. 1B1.10.
In Dillon v. United States, the Supreme Court addressed the process for application of a
retroactive guideline amendment, emphasizing that Section 1B1.10 is binding. 560 U.S. 817 (2010).
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The Supreme Court instructed that “[a]ny reduction must be consistent with applicable policy
statements issued by the Sentencing Commission” and Section 1B1.10 instructs the district court to
“substitute the amended Guidelines range while leav[ing] all other guideline application decisions
unaffected.” Id. at 821 (internal quotations omitted). The Supreme Court set forth a two-step
approach to apply:
At step one, § 3582(c)(2) requires the court to follow the Commission’s instructions
in §1B1.10 to determine the prisoner’s eligibility for a sentence modification and the
extent of the reduction authorized. Specifically, §1B1.10(b)(1) requires the court to
begin by “determin[ing] the amended guideline range that would have been applicable
to the defendant” had the relevant amendment been in effect at the time of the initial
sentencing. “In making such determination, the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline provisions that
were applied when the defendant was sentenced and shall leave all other guideline
application decisions
unaffected.” § 1B1.10(b)(1).
Consistent with the limited nature of § 3582(c)(2) proceedings, §1B1.10(b)(2) also
confines the extent of the reduction authorized. Courts generally may “not reduce the
defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is
less than the minimum of the amended guideline range” produced by the substitution.
§1B1.10(b)(2)(A). Only if the sentencing court originally imposed a term of
imprisonment below the Guidelines range does § 1B1.10 authorize a court proceeding
under § 3582(c)(2) to impose a term “comparably” below the amended range. §
1B1.10(b)(2)(B).
At step two of the inquiry, § 3582(c)(2) instructs a court to consider any applicable §
3553(a) factors and determine whether, in its discretion, the reduction authorized by
reference to the policies relevant at step one is warranted in whole or in part under the
particular circumstances of the case. Because reference to § 3553(a) is appropriate
only at the second step of this circumscribed inquiry, it cannot serve to transform the
proceedings under § 3582(c)(2) into plenary resentencing proceedings.
Dillon, 560 U.S. at 827
On November 1, 2023, Amendment 821 to the United States Sentencing Guidelines took
effect, pursuant to the Sentencing Commission’s authority under 28 U.S.C. § 994(o). The amendment
applies retroactively. Amendment 821 has three parts and several subparts: Part A pertains to “Status
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Points;” Part B pertains to “Zero-Point Offenders;” and Part C pertains to “Simple Possession of
Marihuana Offenses.”
In Part A to Amendment 821 to the United States Sentencing Guidelines, the United States
Sentencing Commission altered the “status points” provision regarding criminal history, which now
appears in U.S.S.G. § 4A1.1(e). Previously, the “status point” provision appeared in U.S.S.G. §
4A1.1(d) which added 2 points if the defendant “committed the instant offense while under any
criminal justice sentence[.]” The amended provision states as follows:
Add 1 point if the defendant (1) receives 7 or more points under subsections (a)
through (d), and (2) committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work release,
or escape status.
U.S.S.G. § 4A1.1(e). A person who otherwise has 7 criminal history points or more now receives 1
additional “status” criminal history point instead of 2, while a person who otherwise has 6 criminal
history points or less receives no status points.
In Part B Subpart 1 to Amendment 821 of the United States Sentencing Guidelines, the United
States Sentencing Commission added what now appears in Section 4C1.1, providing a 2- offense-level
reduction for certain offenders who have zero criminal history points. The new provision provides
as follows:
Adjustment for Certain Zero-Point Offenders
(a) ADJUSTMENT.—If the defendant meets all of the following criteria:
(1) the defendant did not receive any criminal history points from Chapter
Four, Part A;
(2) the defendant did not receive an adjustment under §3A1.4 (Terrorism);
(3) the defendant did not use violence or credible threats of violence in
connection with the offense;
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(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
(7) the defendant did not possess, receive, purchase, transport, transfer,
sell, or otherwise dispose of a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the offense;
(8) the instant offense of conviction is not covered by §2H1.1 (Offenses
Involving Individual Rights);
(9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime
Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights
Offense); and
(10) the defendant did not receive an adjustment under §3B1.1
(Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848;
decrease the offense level determined under Chapters Two and Three by 2
levels
U.S.S.G. § 4C1.1.
There is no right to counsel in Section 3582(c) proceedings. United States v. Brown, 565 F.3d
1093, 1094 (8th Cir. 2009). Nor is there a right to a hearing. See Dillon, 560 U.S. at 827-28
(observing that, under Federal Rule of Criminal Procedure 43(b)(4), a defendant need not be present
at a proceeding under Section 3582(c)(2) regarding the imposition of a sentencing modification).
In this case, the Court adopted the PSR without change. The PSR reveals the Defendant
received 4 scorable criminal history points plus 2 status points, for a total of 6 criminal history points.
See Doc. No. 70, ¶¶ 37-39. Under Part A of Amendment 821, the Defendant now receives no status
points, for a total of 4 criminal history points. That reduction, however, has no effect on his criminal
history category because a defendant with 4,5, or 6 criminal history points falls within criminal
history category III. Even with 4 criminal history points, the Defendant remains in criminal history
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category III. Thus, Part A of Amendment 821 offers him no relief.
Part B of Amendment 821 also offers the Defendant no relief. The 2-level reduction provided
by U.S.S.G. § 4C1.1 applies only if the Defendant had zero criminal history points. U.S.S.G. §
4C1.1(a)(1). Because the Defendant had 4 criminal history points which places him in criminal
history category III, he is not a zero-point offender under U.S.S.G. § 4C1.1 and is ineligible for a
sentence reduction under Part B of Amendment 821.
Having determined the Defendant is not eligible for a sentence reduction, the Court need not
address the Section 3553(a) factors. The Court has carefully reviewed the entire record and concludes
the Defendant has failed to demonstrate he is entitled to a sentence reduction. See United States v.
Jones, 836 F.3d 896, 899 (8th Cir. 2016) (the burden is on the defendant to establish a sentence
reduction is warranted under 18 U.S.C. § 3582(c)(2)).
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 92) is
DENIED.
IT IS SO ORDERED.
Dated this 30th day of May, 2024.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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