Bushway DeSouza v. United States ( 1993 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                           
                                 ____________________


        No. 92-2444

                               BARBARA BUSHWAY DESOUZA,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE


                     [Hon. Norman H. Stahl, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Barbara Bushway DeSouza on brief pro se.
            _______________________
            Jeffrey  R. Howard,  United  States Attorney,  and  Jean  B. Weld,
            __________________                                  _____________
        Assistant United  States Attorney,  on Motion for  Summary Disposition
        for appellee.


                                 ____________________

                                    June 14, 1993
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                      Per Curiam.   In  March 1992, Barbara  Desouza pled
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            guilty  to attempt  and conspiracy  to distribute  cocaine in

            violation of  21 U.S.C.   846.   At sentencing on  August 11,

            1992,  she received  a  two-level reduction  in base  offense

            level  for acceptance  of  responsibility  under  U.S.S.G.   

            3E1.1.   She did not appeal her sentence.  Effective November

            1, 1992, section  3E1.1 was amended  to permit an  additional

            one-level reduction in base  offense level for defendants who

            timely plead guilty so  that the government does not  have to

            prepare for trial.  After the  amendment, Desouza moved under

            28  U.S.C.    2255  to  vacate,  set  aside  or  correct  her

            sentence, citing the  change in the guideline.   The district

            court denied her motion, and she appealed.  We now affirm.

                      In United States  v. Havener, 905 F.2d  3 (1st Cir.
                         _____________     _______

            1990),  we  considered whether  an  amendment  of the  career

            offender guideline, U.S.S.G.   4B1.1, could  be retroactively

            applied.  The amendment had added a sentence to section 4B1.1

            which permitted  career offenders  a reduction of  two levels

            for acceptance of responsibility which had not been permitted

            under the preexisting guideline.  We found that the amendment

            could not  be applied retroactively because  the new sentence

            was "not  clarification; it  [was] change."   Id.  at 5.   We
                                                          ___

            found  our  conclusion  to  be confirmed  by  the  Sentencing

            Commission's  explanation of  the amendment;  its explanation

            suggested that the  amendment was not intended to clarify the



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            guideline, but to "authorize" an acceptance of responsibility

            deduction in  determining  the offense  level  under  section

            4B1.1.  In addition, U.S.S.G.   1B1.10(d) lists the guideline

            amendments intended  to be  retroactive, but did  not include

            the amendment  of section  4B1.1.  Accordingly,  we concluded

            that  the   amended  section  4B1.1  could   not  be  applied

            retroactively.  Id.
                            ___

                      The  analysis  in  Havener  controls   here.    The
                                         _______

            amendment  Desouza   relies  on  is  Amendment   459  to  the

            Sentencing Guidelines.  See U.S.S.G. Manual (1992),  Appendix
                                    ___

            C, at  281-83.  A  review of  that "amendment" shows  that it

            actually deleted the entire text of the preexisting guideline

            and  replaced it  with the  present section  3E1.1.   The new

            guideline retained the old two-level reduction for acceptance

            of  responsibility, albeit  in modified  form.   In addition,

            amended section  3E1.1  permitted an  entirely new  one-level

            reduction in  offense level for defendants  who qualified for

            the  two-level  reduction,  had an  offense  level  of  16 or

            greater  before the  two-level reduction  was taken,  and had

            assisted  authorities in  investigating or  prosecuting their

            own  misconduct  by  taking  certain  steps  such  as  timely

            notifying authorities of an intent to enter a guilty plea.

                      There is no doubt that Amendment  459 substantively

            changed the preexisting guideline, and did not merely clarify

            it,  and  the  Sentencing  Commission's  explanation  of  the



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            purpose  of  the amendment  confirms  that.   The  Sentencing

            Commission stated that the amendment "provides  an additional

            reduction  of   one  level  for   certain  defendants   whose

            acceptance  of  responsibility  includes  assistance  to  the

            government in  the investigation or prosecution  of their own

            misconduct."  Id. at 283.  Although the Sentencing Commission
                          ___

            can  designate  a  substantive  change  as  retroactive,  the

            Sentencing Commission did not include this one in the list of

            those qualifying  for  retroactive application.   U.S.S.G.   

            lBl.10(d)  (listing  amendments designated  as retroactive).1

            Accordingly, the  district court  had no authority  to modify

            Desouza's  sentence even  if  it thought  that Desouza  would

            under the  new version  qualify for the  additional one-level

            reduction.  Havener, 905 F.2d at 6-7 (applying this rationale
                        _______

            to deny retroactive application of an amendment to the career

            offender  guideline); see  also United  States v.  Caceda, --
                                  ________________________     ______

            F.2d  --,  1993  WL  98298  (2d  Cir.  1993)  (applying  this

            rationale to deny retroactive application of Amendment 459).

                      We conclude  that amended section 3E1.1  may not be

            applied retroactively  to permit  Desouza an  additional one-

                                
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            1.  Where the Sentencing  Commission designates a substantive
            change as  retroactive, the  court "may" reduce  a previously
            imposed term  in accordance with the change  if the reduction
            is consistent with general sentencing  factors and applicable
            policy statements of the Sentencing  Commission.  18 U.S.C.  
            3582(c)(2).  Unless  a request for  a reduction falls  within
            this  rubric, or one of the other exceptions specified in the
            statute, the court "may not modify a term of imprisonment . .
            . ."  18 U.S.C.   3582(c).

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            level reduction for timely pleading guilty.   The judgment of

            the district court is affirmed.
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