USA v. Guenthner et al

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. )
)
Michelle Laducer, ) Case No. 1:13-cr-057
)
Defendant. )
_______________________________________________________________________________
Before the Court is the Defendant’s pro se motion to reduce sentence under 18 U.S.C. §
3582(c)(2), filed on March 18, 2024. See Doc. No. 83. The Government filed a response in
opposition to the motion on April 15, 2024. See Doc. No. 86. For the reasons set forth below, the
motion is denied.
I. BACKGROUND
The Defendant was arrested, via criminal complaint, on March 3, 2013. A multi-count
indictment was filed against the Defendant on March 26, 2013 charging multiple sex offenses. See
Doc. No. 10. On June 17, 2013, the Defendant pled guilty to one count of sexual exploitation of a
minor in violation of 18 U.S.C. § 2251(a) and (e) and one count of sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(b) and (e).
The Presentence Investigation Report (“PSR”) calculated a total offense level of 43. See Doc.
41, ¶ 43. The Defendant had zero scorable criminal history points. See Doc. No. 41, ¶ 47. With zero
criminal history points she fell into criminal history category I. See Doc. No. 41, ¶ 47. An offense
level of 43 and criminal history category I yields an advisory Sentencing Guideline range of life. See
Doc. No. 41, ¶ 95. However, with a statutory maximum of 30 years on each count, the Guideline
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Range was 720 months. See Doc. No. 41, ¶ 95. The charges to which the Defendant pled guilty
carried a mandatory minimum sentence of 10 years. See Doc. No. 41, ¶ 94. On September 23, 2013,
the Court the Court adopted the PSR without change and sentenced Laducer to 360-months of
imprisonment and a lifetime of supervised release. See Doc. No. 47. No appeal was taken.
On March 18, 2024, the Defendant filed a pro se motion seeking a sentence reduction under
18 U.S.C. § 3582(c)(2) and Amendment 821 contending she was a zero point offender under Part B
of Amendment 821 and thus she should receive a sentence reduction. See Doc. No. 83. The
Government filed a response in opposition to the motion contending Amendment 821 did not alter
the Defendant’s advisory Sentencing Guideline range and thus no sentence reduction is warranted.
See Doc. No. 86. The Defendant is serving her sentence at Carswell FMC in Fort Worth, Texas. Her
projected release date is November 20, 2038.
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).
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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
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
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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.
(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.
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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).
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
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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
Points;” Part B pertains to “Zero-Point Offenders;” and Part C pertains to “Simple Possession of
Marihuana Offenses.”
In Part B Subpart 1 of Amendment 821to 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;
(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
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(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 Defendant does not qualify for a sentence reduction under Part B of
Amendment 821 even though she had zero criminal history points. To qualify for a 2-level offense
level reduction, a defendant with zero criminal history points must satisfy all ten of the qualifying
criteria listed in U.S.S.G. § 4C1.1. The Defendant cannot satisfy this requirement because she does
not meet the criterion listed in U.S.S.G. § 4C1.1(a)(5), that “the instant offense of conviction is not
a sex offense.” Section 4C1.1(b)(2) defines “sex offense,” as relevant here, as “(A) an offense,
perpetrated against a minor, under . . . (ii) chapter 110 of title 18, not including a recordkeeping
offense.” The Defendant’s convictions—18 U.S.C. § 2251(a) and (e) (Count One) and 2251(b) and
(e) (Count Three)—fall within chapter 110 of title 18, and the victim was a minor. Because the
Defendant committed a sex offense under U.S.S.G. § 4C1.1(a)(5), she is not considered 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
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the Defendant has failed to demonstrate she 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. 86) is
DENIED.
IT IS SO ORDERED.
Dated this 3rd day of June, 2024.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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