United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
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.
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.
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:
[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
Id. (citations omitted).
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).
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.
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).
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)).
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 ...