USA v. Kagle

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, 	)
)
Plaintiff, 	) 	ORDER DENYING MOTION TO
) 	REDUCE SENTENCE
vs. 	)
) 	Case No. 3:21-cr-201(2)
Harley Ann Tessman, 	)
)
Defendant. 	)
Defendant Harley Ann Tessman moves for a sentence reduction under 18 U.S.C. §
3582(c)(2) and Amendment 821 to the United States Sentencing Guidelines. Doc. 91. The United
States opposes the motion. Doc. 94. For the reasons below, the motion is denied.
In 2022, Tessman pleaded guilty to drug conspiracy charges. Docs. 45, 46. The revised
presentence investigation report calculated her sentencing range as 120 to 150 months, based on a
total offense level of 27 and a criminal history category V. Doc. 68. She received 2 status points
under United States Sentencing Guideline § 4A1.1(d) and had a total of 12 criminal history points.
Id. Tessman was sentenced to 72 months in prison. Doc. 70.
Under 18 U.S.C. § 3582(c)(2):
in the case of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
This exception to the general rule that a court may not modify a term of imprisonment once it has
been imposed “represents a congressional act of lenity intended to give prisoners the benefit of
later enacted adjustments to the judgments reflected in the Guidelines.” Dillon v. United States,
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560 U.S. 817, 828 (2010). But the exception is limited; it “does not authorize a resentencing.” Id.
at 831. “It permits a sentence reduction within the narrow bounds established by the Commission.”
Id. In deciding whether to reduce a sentence based on a retroactive amendment to the United States
Sentencing Guidelines under 18 U.S.C. § 3582(c)(2), a court must first consider the scope of the
reduction authorized by the amendment and then consider whether such a reduction is warranted
under 18 U.S.C. § 3553(a). Dillon, 560 U.S. at 826.
Tessman generally seeks a sentence reduction under Parts A and B of Amendment 821.
But neither Part provides relief. As to Part A, this portion of Amendment 821 lowers the number
of “status points” received under United States Sentencing Guideline § 4A1.1 for individuals who
commit their offense while under a criminal justice sentence. Applying the new provision to
Tessman, she would receive 1 status point instead of 2, reducing her total criminal history points
from 12 to 11. But even with 11 criminal history points, Tessman remains squarely within criminal
history category V. So, her sentencing range is unaffected by the status point reduction.
As to Part B, this portion of Amendment 821 provides an offense level reduction for “zero-
point” offenders, who are offenders with no criminal history points. See U.S.S.G. § 4C1.1(a).
Tessman received 10 scoreable criminal history points and is not a zero-point offender. So, she is
not eligible for a sentence reduction under Part B of Amendment 821.
After extensive review the entire record and the relevant legal authority, Tessman’s motion
to reduce sentence (Doc. 91) is DENIED.
IT IS SO ORDERED.
Dated this 8th day of April, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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