United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Judge
December 22, 2016, Kenneth Erwin Lyons (“Lyons”
or “defendant”) filed a pro se motion to reduce
his sentence under 18 U.S.C. § 3582(c) and Amendment 782
to the United States Sentencing Commission Guidelines Manual.
(ECF No. 90.) On February 22, 2017, the government filed a
response in opposition to defendant's motion to reduce
his sentence. (ECF No. 94.) On March 22, 2017, defendant
filed a reply to the government's response in
opposition.(ECF No. 95.) Having been fully briefed,
defendant's motion is now ripe for disposition.
February 7, 2002, defendant was convicted of counts 1, 2 and
5 of the indictment at criminal action number 01-59.
Defendant was sentenced to 180 months imprisonment and five
years of supervised release. (ECF No. 29.) On June 21, 2002,
defendant was sentenced to 12 months imprisonment and five
years of supervised release, for violating the conditions of
his supervised release at criminal action number 94-102.
(See Criminal Action No. 94-102, ECF No. 57.)
Defendant was released from prison on June 27, 2014. (ECF No.
94 at 2.)
August 12, 2016, defendant came before this court for
violating the terms of his supervised release at criminal
action numbers 01-59 and 94-102. The court revoked
defendant's supervised release and imposed a sentence of
imprisonment of 24 months at each of counts 1, 2, and 5 of
the indictment at criminal number 01-59 (ECF No. 85), and a
sentence of imprisonment of 36 months at count 1 of the
indictment at criminal number 94-102, to be served
concurrently for a total of 36 months (Criminal Action No.
94-102, ECF No. 66.). Defendant is currently serving this
December 22, 2016, defendant filed the instant motion asking
for a reduction of his sentence pursuant to 18 U.S.C. §
3582(c) and Amendment 782. (ECF No. 90.) Defendant asserts
that he “never received the two point reduction which I
now qualify for under my new sentence of 36 months and 2
years supervise [sic] release.” (Id.)
Defendant asks the court either to vacate his original 1994
sentence at criminal action number 94-102, because the two
point reduction was never applied or to deduct two points
from the sentence he is currently serving due to his
supervised release violation. (Id.)
district court generally 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.'
” United States v. Rodriguez, 667 F.App'x
355, 356-57 (3d Cir. 2016) (quoting 18 U.S.C. § 3582)
requests that the court reduce his sentence pursuant to
Amendment 782, which revised the guidelines applicable to
drug trafficking offenses by reducing the base offense levels
referenced in §§ 2D1.1 and 2D1.11 of the United
States Sentencing Commission Guidelines Manual. Reduction to
the term of imprisonment resulting from the amendment of a
guideline range is governed by the policy statement found in
U.S.S.G. § 1B1.10. Pursuant to Application Note 7(A) of
Only a term of imprisonment imposed as part of the original
sentence is authorized to be reduced under this section. This
section does not authorize a reduction in the term of
imprisonment imposed upon revocation of supervised release.
on U.S.S.G. § 1B1.10, the Third Circuit Court of Appeals
has found that a district court cannot apply § 3582(c)
and Amendment 782 to reduce a sentence imposed for a
supervised release violation. See United States v.
Bolt, 377 F.App'x 253, 254 (3d Cir. 2010);
United States v. Cuff, 338 F.App'x 161, 164 (3d
Cir. 2009); see also United States v. Kelsey,
Criminal Action No. 08-687, 2016 WL 4319131, at *1 (E.D. Pa.
Feb. 12, 2016); United States v. Washington,
Criminal Action No. 03-72-02, 2015 WL 4094411, at *2 (W.D.
Pa. July 7, 2015).
defendant is currently serving two concurrent terms of
incarceration for supervised release violations, he is not
eligible for a reduction of sentence under § 3582(c) and
Amendment 782. Defendant's motion is, therefore, denied.
An appropriate order will be entered.