United States District Court, M.D. Pennsylvania
Malachy E. Mannion United States District Judge
before the court is the defendant's pro se motion for
modification of sentence pursuant 18 U.S.C. §3582(c)(2)
seeking to reduce his 70-month sentence for bank fraud based
on United States Sentencing Guidelines Manual Amendment 791
which revised §2B1.1 and went into effect after his
sentence. The defendant contends that the amendment would
reduce his offense levels under the Guidelines by two levels.
Upon the court's review of the record in this case, the
defendant's motion, (Doc. 45), as well as the
Government's response, (Doc. 49), the defendant's
motion is DENIED. Defendant's request to appoint
“federal defense counsel” is also DENIED.
August 23, 2013, an Information was filed against Brian
Hewson, (“the defendant”), charging him with bank
fraud in violation 18 U.S.C. §1344 (Count 1) and aiding
and abetting the preparation of a false federal income tax
return in violation of 26 U.S.C. §7206(2) (Count 2).
September 4, 2013, the defendant pleaded guilty to both
charges in the Information. (Doc. 10). On July 10,
2014, the defendant was sentenced to 70 months in prison on
the bank fraud charge and 36 months in prison on the income
tax charge, to run concurrently, followed by three years of
supervised release. (Doc. 41). The defendant did not
file an appeal regarding his judgment of conviction or his
sentence. The defendant is currently serving his sentence at
the Federal Prison Camp Pensacola, Florida.
October 21, 2016, the defendant filed a one-page motion under
18 U.S.C. §3582(c)(2) to reduce his sentence
pursuant to United States Sentencing Guidelines Manual
Amendment 791. (Doc. 45). In his instant motion,
the defendant requests the court to reduce his sentence based
on the stated amendment to the Guidelines regarding the loss
amounts which took effect after his sentencing. The defendant
is proceeding pro se but he requests the appointment
of counsel with respect to his motion. After being granted an
extension of time, the Government filed its brief in
opposition to the defendant's motion. (Doc. 49).
The defendant did not file any brief and the time within
which he could do so has expired.
defendant contends that “based on the Guideline range
under which he was sentenced, and the subsequent reduction
and modification of this loss amount by the U.S. Sentencing
Commission which took place shortly after his
sentencing”, he is entitled to “a two point
reduction that would have significantly lowered his sentence
under the terms of the new guidelines as well as based on the
sentencing factors which are enumerated in 18 U.S.C.
§3553(a).” (Doc. 45).
response to the defendant's motion, the Government
Guidelines 2B1.1 is the guideline that established the
defendant's advisory sentencing range as a result of his
conviction on the bank fraud charge. PSR ¶¶ 26-31.
Under that guideline, the defendant's base offense level
at the time of his sentencing was 7 and 14 levels were added
to the base offense level as the result of a loss of $429,
000. PSR ¶¶ 26-27.The defendant also received a
two-level upward adjustment since he knew or should have
known that one of his victims was a vulnerable victim. PSR
¶ 28. Based on the total offense level of 23 and a
Criminal History Category of IV, the defendant's advisory
sentencing range was calculated as 70-87 months'
imprisonment. PSR ¶ 77. (Doc. 49 at 2-3)
is no dispute that Section 2B1.1 of the United States
Sentencing Commission Guidelines (the
“Guidelines”) was amended after the
defendant's sentencing. Specifically, Amendment 791,
which went into effect on November 1, 2015, provides that an
upward adjustment of 12 levels should be added to the base
offense level for a loss of more than $250, 000 but less than
$550, 000. See U.S. Sentencing Guidelines Manual
Amendment 791, Supplement to App. C. In U.S. v. Egwuekwe, __
Fed.Appx. __, 2016 WL 4928626, *1 n. 1 (3d Cir. Sept. 16,
2016), the Third Circuit noted that Amendment 791 as well as
792 revised §2B1.1 regarding economic crimes.
indicated, 14 levels were added to the defendant's base
offense level when he was sentenced since the loss amount was
$429, 000 and §2B1.1 of the Guidelines, at the time of
his sentence, provided that a loss of more than $400, 000 but
less than $1, 000, 000 resulted in an upward adjustment of 14
levels. PSR ¶ 27. As such, the defendant now seeks
retroactive application of Amendment 791 to his sentence to
render his loss adjustment two levels lower, i.e., from 14 to
12, and to reduce his prison sentence.
U.S. v. Gibbs, 647 Fed.Appx. 133, 135 (3d Cir.
2016), the Third Circuit stated:
Generally, a district court cannot “modify a term of
imprisonment once it has been imposed” unless a
defendant is eligible for a reduction of sentence pursuant to
§3582(c). Section 3582(c)(2) allows for a reduction if:
(1) the sentence was “based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission;” and (2) “a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. §3582(c)(2); United
States v. Flemming,723 F.3d 407, 410 (3d Cir. 2013). A
reduction in sentence is not consistent with the relevant
policy statement unless the amendment has “the effect
of lowering the defendant's applicable guideline
range.” U.S.S.G. §1B1.10(a)(2)(B). The Guidelines
also provide specific instructions for a court when
determining whether a sentence reduction is warranted.
§1B1.10(b)(1). Section 1B1.10(b)(1) instructs that
“the court shall determine the amended guideline range
that would have been applicable to the defendant if the
amendment[ ] ... had been in effect at ...