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Gerideau-Williams v. United States

United States District Court, W.D. Pennsylvania

October 18, 2017

LISA GERIDEAU-WILLIAMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Cathy Bissoon Judge

         I. MEMORANDUM

         Pending before the Court is Petitioner Lisa Gerideau-Williams’s “Motion to Reduce Sentence Pursuant to 18 U.S.C. Section 2255 (Not a second or successive motion)” (Doc. 185). For the reasons that follow, Petitioner’s Motion will be dismissed for lack of subject matter jurisdiction.

         Petitioner requests that her sentence be vacated, and she be resentenced, utilizing the definition of “intended loss” as set forth in Amendment 792 to the United States Sentencing Guidelines (“U.S.S.G.”), effective on November 1, 2015. Doc. 185 at 2, ¶ 3. Petitioner argues that Amendment 792 is a clarifying amendment that should apply retroactively to her case, and that, once the definition of “intended loss” per Amendment 792 is applied, her loss-level enhancement should be reduced from 16 to 12 levels. Id.

         In relevant part, Amendment 792 revised Note 3(A)(ii) of the Commentary to §2B1.1, with respect to the definition of intended-loss, “by striking ‘(I) means the pecuniary harm that was intended to result from the offense; . . . and inserting ‘(I) means the pecuniary harm that the defendant purposely sought to inflict . . . .’” U.S.S.G. Supp. to App’x C, Amend. 792 (Nov. 1, 2015) (emphasis added). The reason for the amendment was explained as follows:

Intended Loss
[T]he amendment revises the commentary at §2B1.1, Application Note 3(A)(ii), which has defined intended loss as “pecuniary harm that was intended to result from the offense.” In interpreting this provision, courts have expressed some disagreement as to whether a subjective or an objective inquiry is required. . . .
The amendment . . . revis[es] the commentary . . . to provide that intended loss means the pecuniary harm that “the defendant purposely sought to inflict.” The amendment reflects the Commission’s continued belief that intended loss is an important factor in economic crime offenses, but also recognizes that sentencing enhancements predicated on intended loss, rather than losses that have actually accrued, should focus more specifically on the defendant’s culpability.

Id. (citations omitted).

         This is not Petitioner’s first Motion to vacate pursuant to 28 U.S.C. § 2255. Petitioner filed her first Motion on February 2, 2015 (Doc. 171). It was denied by Order of Court on December 11, 2015 (Doc. No. 175), and the appellate court affirmed the Court’s Order on June 6, 2016 (Doc. 184).

         In response to Petitioner’s current Motion, the government argues that it must be denied because Amendment 792 “does not apply retroactively to cases on collateral review.” Doc. 189 at 2. More specifically, the government contends that Amendment 792 does not qualify for retroactive applicability because, pursuant to 28 U.S.C. § 3582(c)(2), only amendments expressly listed in U.S.S.G. § 1B1.10(d) are to be applied retroactively, and Amendment 792 is not so-listed. Id. at 3-4.

         In reply, Petitioner reiterates her position that her Motion can and should be considered pursuant to 28 U.S.C. § 2255. Doc. 191 at 1-2. She further argues, “the law is clear that courts can give retroactive effect to a clarifying (as opposed to substantive) amendment regardless of whether it is listed in U.S.S.G. § B1.10”; she contends that Amendment 792 is a clarifying amendment; and she posits that “the newly amended language in Amendment 792 results in a reduction of the loss enhancement from the 16-level intended loss to a 12-level actual loss,” and she must be resentenced. Id. at 2-3. Finally, Petitioner asserts that, while she believes that her Motion properly is brought pursuant to Section 2255, if it should be considered as one brought pursuant to 18 U.S.C. §3742, then she “requests that this [C]ourt properly classify [the filing] according to its content, without regard to its caption.” Id. at 3-4 (citing 18 U.S.C. § 3742).

         Petitioner’s status as a former-lawyer notwithstanding, the Court is required to liberally construe her filings with an eye toward substance, rather than form. U.S. v. Delgado, 363 F. App’x. 853, 855 (3d Cir. 2010) (citing U.S. v. Miller, 197 F.3d 644, 648 (3d Cir. 1999)).

         As an initial matter, the Court finds that the current Motion is not, as Petitioner argues in the alternative, one properly brought pursuant to 18 U.S.C. § 3742. Section 3742 expressly confers jurisdiction to the appellate court, not the district court, to review sentences in criminal cases. See 18 U.S.C. § 3742(e). Rather, the Court finds that Petitioner can assert her claim as a motion to vacate pursuant to Section 2255. See U.S. v. Marmolejos, 140 F.3d 488, 491 (3d Cir. 1988) (analyzing arguments regarding a post-sentencing amendment to the application notes under Section 2255); Mendoza ...


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