Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255

United States v. Maximus Prophet, 2021 WL 800384 (Mar. 3, 2021), 

https://www2.ca3.uscourts.gov/opinarch/183776p.pdf

           Prior to 2016, a Circuit split arose over whether the Guideline enhancement under § 2G2.2(b)(3)(F) for distribution required a finding of mens rea.  In 2016, the Sentencing Commission promulgated Amendment 801, revising the language in subsection (F) to state “If the defendant knowingly engaged in distribution.” U.S. Sent'g Guidelines Manual app. C, amend. 801.

          Prophet filed motions seeking relief under both § 2255 and § 2241 in October 2017, arguing that the amendment should apply retroactively.  The district court adopted the report and recommendation of the magistrate which found that the amendment was not retroactive. 

          To begin, the Court found that the appeal was not moot, despite Prophet’s release, because he remained on supervised release and a resentencing could merit credit against that term. 

          Moving to the substantive issue, the Court began with the legal standard for retroactive application of an amendment:  “a post-sentencing amendment to a sentencing guideline or its comments should be given effect if it ‘clarifies’ the guideline or comment in place at the time of sentencing.  If, however, the amendment effects a substantive change in the law, the defendant does not receive the benefit of the change.” (cleaned up) (quoting United States v. Marmolejos, 140 F.3d 488, 490 (3d Cir. 1998)).  This determination is made by reference to “the language of the amendment, the amendment's purpose and effect, and whether, as a matter of construction, the guideline and commentary in effect at that time is really consistent with the amended manual.” Id. at 491. 

          In concluding that Amendment 801 is not clarifying or retroactive, the Court found that 1. Adding a mens rea to the actual text rather than the commentary suggested aa substantive change; 2. The amendment did not fill an explanatory gap, but changed the application of the enhancement; 3. The purpose of the amendment, that “Based on testimony, public comment, and data analysis, the Commission determined that the 2-level distribution enhancement is appropriate only in cases in which the defendant knowingly engaged in distribution,” suggests that the earlier view was that a finding of knowledge was not required, and 4. The description of the change as “generally adopt[ing] the approach of the Second, Fourth, and Seventh Circuits” which had required a showing of knowledge to apply the enhancement, signified the amendment “is effectuating a change that adds something new.”

          Of note:  The circuit split as to the meaning or the application of the Guideline, and resolving an ambiguity may indicate either a clarification or a substantive change, and the Commission’s word choice between “clarification” and “revision” is of little importance.

Blog post written by: Christy Martin