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Fox v. United States

United States District Court, D. Maine

June 12, 2017



          John C. Nivison U.S. Magistrate Judge

         In this action, Petitioner Walter Scott Fox, III, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 88; Amended Motion, ECF No. 91.)[1]

         Petitioner pled guilty to charges of bank fraud, 18 U.S.C. § 1344, and the attempt to evade or defeat tax, 26 U.S.C. § 7201. (Judgment, ECF No. 61 at 1.) In June 2014, the Court sentenced Petitioner to a prison term of 120 months for bank fraud, and to 60 months for tax evasion, with the two terms to be served concurrently, to be followed by terms of three years of supervised release on each count, with the terms to be served concurrently. (Id. at 2-3.) Petitioner did not appeal from the judgment.

         In his section 2255 motion, Petitioner contends that he is entitled to a reduction in the sentence based on Amendment 791 to the United States Sentencing Guidelines.[2]Petitioner also maintains that in the event he is resentenced, the Court should consider his good behavior while incarcerated. (Amended Motion at 8.)

         The Government argues, among other things, that summary dismissal is warranted because Petitioner's motion was not filed timely, and Amendment 791, which was effective on November 1, 2015, is not retroactively applicable to Petitioner's June 2014 sentence. (Response, ECF No. 102 at 8-9.)

         After consideration of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.


         Although Petitioner states that he does not seek relief under 18 U.S.C. § 3582 (Reply, ECF No. 103 at 4), a request for a sentence reduction based on an amendment to the sentencing guidelines is governed by 18 U.S.C. § 3582(c)(2), which permits reductions "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).[3] "Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u). This power has been implemented in USSG § 1B1.10, which sets forth the amendments that justify sentence reduction." Braxton v. United States, 500 U.S. 344, 348 (1991); see United States v. Havener, 905 F.2d 3, 7 (1st Cir. 1990) (holding that USSG § IB 1.10(a) "expressly forbids retroactive application" of amendments that do not appear on the list of sentencing guidelines amendments included in section IB 1.10(d)).[4]

         Because Amendment 791 is not listed in USSG § IB 1.10(d), sentencing reductions under Amendment 791 are not authorized. In other words, Amendment 791 is not retroactive to a sentence imposed before the November 1, 2015, effective date of the amendment. Petitioner, therefore, is not entitled to relief under section 3582(c)(2).

         Petitioner's attempt to secure a reduction of his sentence pursuant to 28 U.S.C. § 2255 also fails. Under section 2255, a person may move to vacate his or her sentence on one of four grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772-74 (1st Cir. 1994) (holding that the petitioner's claim of errors in the application of the sentencing guidelines did not amount to a miscarriage of justice). None of the grounds set forth in section 2255(a) applies to Petitioner's claim, as Petitioner's claim is based on a non-retroactive guidelines change that occurred after Petitioner was sentenced. Petitioner, therefore, has not asserted a claim within the scope of section 2255.

         Furthermore, even if relief were potentially available under section 2255, Petitioner did not file the motion within the limitation period provided under section 2255(f).[5] In support of his contention that he timely filed his motion, Petitioner invokes section 2255(f)(4), which provides that a section 2255 motion may be filed within one year of the date on which new facts are discovered. Section 2255(f)(4), however, does not apply because Petitioner's request is based on an amendment to the sentencing guidelines rather than on newly discovered facts. See Barreto-Barreto v. United States, 551 F.3d 95, 99 n.4 (1st Cir. 2008) (holding that "the discovery of a new legal theory does not constitute a discoverable 'fact' for purposes of § 2255(f)(4)"). Petitioner appropriately does not argue that any other provision of section 2255(f) applies.[6]

         In sum, Petitioner has not asserted a basis for relief under 28 U.S.C. § 2255. In addition, 18 U.S.C. § 3582(c)(2), the statute that governs the modification of sentences when the Sentencing Commission reduces the applicable sentencing range, does not permit relief because Amendment 791 is not retroactively applicable under USSG § 1B1.10(a), (d). Accordingly, Petitioner is not entitled to relief.


         Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule 8 of the Rules Governing Section 2255 Cases. I recommend the Court deny Petitioner's motion for habeas relief under 28 U.S.C. § 2255. I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no ...

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