USA v. Dixon et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT'S
) MOTION TO REDUCE SENTENCE
vs. )
)
Warren Adrian Dixon, ) Case No. 1:17-cr-083
)
Defendant. )
_______________________________________________________________________________
Before the Court is the Defendant’s motion to reduce sentence under 18 U.S.C. § 3582(c)(2),
filed on September 9, 2024. See Doc. No. 608. The Government filed a response in opposition to the
motion on October 8, 2024. See Doc. No. 611. For the reasons set forth below, the motion is denied.
I. BACKGROUND
In 2017, the Defendant was charged in a multi-count indictment with two drug related
offenses. See Doc. No. 1. On June 17, 2019, the Defendant pled guilty pursuant to a written plea
agreement to one count of conspiracy to distribute and possess with intent to distribute controlled
substances. See Doc. No. 486.
The Presentence Investigation Report calculated a total offense level of 31 with a criminal
history category of VI, resulting in an advisory Sentencing Guideline range of 188 to 235 months.
See Doc. No. 504, ¶ 114. The offense to which the Defendant pled guilty also carried a 10-year
mandatory minimum sentence. See Doc. No. 504, ¶ 113. The Defendant’s criminal history resulted
in 14 scorable criminal history points. Because he committed the instant offense while under a
criminal justice sentence, another 2 points were added under U.S.S.G. § 4A1.1(d). See Doc. No. 504,
¶ 47. Therefore he had a total of 16 criminal history points, which placed him in criminal history
1
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 1 of 7

category VI. See Doc. No. 50, ¶ 34. At sentencing on March 10, 2020, the Court adopted the
Presentence Investigation Report without change and sentenced the Defendant to 120-months of
imprisonment and 5 years of supervised release. See Doc. Nos. 551 and 552.
On September 9, 2024, the Defendant filed a motion seeking a sentence reduction under 18
U.S.C. § 3582(c)(2) and Amendment 821 contending his Sentencing Guideline range was lowered
by Part A of Amendment 821 and thus he should receive a sentence reduction. See Doc. No. 608.
The Government filed a response in opposition to the motion on October 8, 2024. See Doc. No. 611.
The Defendant is serving his sentence at FCI Herlong in Herlong, California. He has a presumptive
release date of December 11, 2026.
II. LEGAL DISCUSSION
Under the federal sentencing scheme, sentence modifications are available under very limited
circumstances. One circumstance in which a sentence reduction is permitted is when the applicable
Sentencing Guideline range has been lowered by the Sentencing Commission and it makes the
amendment retroactive. See 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) of Title 18 of the United
States Code provides as follows:
[I]n 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.
18 U.S.C. § 3582(c)(2).
The applicable Sentencing Commission policy statement provides as follows:
(a) AUTHORITY.--
2
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 2 of 7

(1) IN GENERAL.--In a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines Manual listed in subsection (d) below, the court may reduce
the defendant's term of imprisonment as provided by 18 U.S.C. §
3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction
in the defendant's term of imprisonment shall be consistent with this
policy statement.
(2) EXCLUSIONS.--A reduction in the defendant's term of imprisonment
is not consistent with this policy statement and therefore is not
authorized under 18 U.S.C. § 3582(c)(2) if–
(A) none of the amendments listed in subsection (d) is applicable
to the defendant; or
(B) an amendment listed in subsection (d) does not have the effect
of lowering the defendant's applicable guideline range.
(3) LIMITATION.--Consistent with subsection (b), proceedings under 18
U.S.C. § 3582(c)(2) and this policy statement do not constitute a full
resentencing of the defendant.
(b) DETERMINATION OF REDUCTION IN TERM OF IMPRISONMENT.--
(1) IN GENERAL--In determining whether, and to what extent, a
reduction in the defendant's term of imprisonment under 18 U.S.C. §
3582(c)(2) and this policy statement is warranted, the court shall
determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed
in subsection (d) had been in effect at the time the defendant was
sentenced. In making such determination, the court shall substitute
only the amendments listed in subsection (d) for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application decisions
unaffected.
(2) LIMITATION AND PROHIBITION ON EXTENT OF
REDUCTION.--
(A) LIMITATION.--Except as provided in subdivision (B), the
court shall not reduce the defendant's term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline
range determined under subdivision (1) of this subsection.
3
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 3 of 7

(B) EXCEPTION FOR SUBSTANTIAL ASSISTANCE.--If the
term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government
motion to reflect the defendant's substantial assistance to
authorities, a reduction comparably less than the amended
guideline range determined under subdivision (1) of this
subsection may be appropriate.
(C) PROHIBITION.--In no event may the reduced term of
imprisonment be less than the term of imprisonment the
defendant has already served.
(c) CASES INVOLVING MANDATORY MINIMUM SENTENCES AND
SUBSTANTIAL ASSISTANCE.--If the case involves a statutorily required
minimum sentence and the court had the authority to impose a sentence below
the statutorily required minimum sentence pursuant to a government motion
to reflect the defendant’s substantial assistance to authorities, then for purposes
of this policy statement the amended guideline range shall be determined
without regard to the operation of § 5G1.1 (Sentencing on a Single Count of
Conviction) and § 5G1.2 (Sentencing on Multiple Counts of Conviction).
(d) COVERED AMENDMENTS.--Amendments covered by this policy statement
are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371,
379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606, 657,
702, 706 as amended by 711, 715, 750 (parts A and C only), 782 (subject to
subsection (e)(1)), and 821 (parts A and B, subpart 1 only and subject to
subsection (e)(2)).
(e) SPECIAL INSTRUCTIONS.--
(1) The court shall not order a reduced term of imprisonment based on
Amendment 782 unless the effective date of the court’s order is
November 1, 2015, or later.
(2) The court shall not order a reduced term of imprisonment based on Part
A or Part B, Subpart 1 of Amendment 821 unless the effective date of
the court's order is February 1, 2024, or later.
U.S.S.G. 1B1.10.
In Dillon v. United States, the Supreme Court addressed the process for application of a
retroactive guideline amendment, emphasizing that Section 1B1.10 is binding. 560 U.S. 817 (2010).
4
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 4 of 7

The Supreme Court instructed that “[a]ny reduction must be consistent with applicable policy
statements issued by the Sentencing Commission” and Section 1B1.10 instructs the district court to
“substitute the amended Guidelines range while leav[ing] all other guideline application decisions
unaffected.” Id. at 821 (internal quotations omitted). The Supreme Court set forth a two-step
approach to apply:
At step one, § 3582(c)(2) requires the court to follow the Commission’s instructions
in §1B1.10 to determine the prisoner’s eligibility for a sentence modification and the
extent of the reduction authorized. Specifically, §1B1.10(b)(1) requires the court to
begin by “determin[ing] the amended guideline range that would have been applicable
to the defendant” had the relevant amendment been in effect at the time of the initial
sentencing. “In making such determination, the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline provisions that
were applied when the defendant was sentenced and shall leave all other guideline
application decisions
unaffected.” § 1B1.10(b)(1).
Consistent with the limited nature of § 3582(c)(2) proceedings, §1B1.10(b)(2) also
confines the extent of the reduction authorized. Courts generally may “not reduce the
defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is
less than the minimum of the amended guideline range” produced by the substitution.
§1B1.10(b)(2)(A). Only if the sentencing court originally imposed a term of
imprisonment below the Guidelines range does § 1B1.10 authorize a court proceeding
under § 3582(c)(2) to impose a term “comparably” below the amended range. §
1B1.10(b)(2)(B).
At step two of the inquiry, § 3582(c)(2) instructs a court to consider any applicable §
3553(a) factors and determine whether, in its discretion, the reduction authorized by
reference to the policies relevant at step one is warranted in whole or in part under the
particular circumstances of the case. Because reference to § 3553(a) is appropriate
only at the second step of this circumscribed inquiry, it cannot serve to transform the
proceedings under § 3582(c)(2) into plenary resentencing proceedings.
Dillon, 560 U.S. at 827
On November 1, 2023, Amendment 821 to the United States Sentencing Guidelines took
effect, pursuant to the Sentencing Commission’s authority under 28 U.S.C. § 994(o). The amendment
applies retroactively. Amendment 821 has three parts and several subparts: Part A pertains to “Status
5
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 5 of 7

Points;” Part B pertains to “Zero-Point Offenders;” and Part C pertains to “Simple Possession of
Marihuana Offenses.”
In Part A to Amendment 821 to the United States Sentencing Guidelines, the United States
Sentencing Commission altered the “status points” provision regarding criminal history, which now
appears in U.S.S.G. § 4A1.1(e). Previously, the “status point” provision appeared in U.S.S.G. §
4A1.1(d) which added 2 points if the defendant “committed the instant offense while under any
criminal justice sentence[.]” The amended provision states as follows:
Add 1 point if the defendant (1) receives 7 or more points under subsections (a)
through (d), and (2) committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work release,
or escape status.
U.S.S.G. § 4A1.1(e). A person who otherwise has 7 criminal history points or more now receives 1
additional “status” criminal history point instead of 2, while a person who otherwise has 6 criminal
history points or less receives no status points.
There is no right to counsel in Section 3582(c) proceedings. United States v. Brown, 565 F.3d
1093, 1094 (8th Cir. 2009). Nor is there a right to a hearing. See Dillon, 560 U.S. at 827-28
(observing that, under Federal Rule of Criminal Procedure 43(b)(4), a defendant need not be present
at a proceeding under Section 3582(c)(2) regarding the imposition of a sentencing modification).
In this case, the Defendant had 14 scorable criminal history points before U.S.S.G. § 4A1.1(d)
added 2 status points for a total of 16 criminal history points. The 2 points were added because he
was under a criminal justice sentence at the time of the instant offense. Applying Amendment 821,
the Defendant would receive 1 status point instead of 2, resulting in a total of 15 criminal history
points rather than 16. A defendant with 13 or more criminal history points falls within criminal
history category VI. Thus, the Defendant remains in criminal history category VI and Part A to
6
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 6 of 7

Amendment 821 offers him no relief.
Having determined the Defendant is not eligible for a sentence reduction, the Court need not
address the Section 3553(a) factors. The Court has carefully reviewed the entire record and concludes
the Defendant has failed to demonstrate he is entitled to a sentence reduction. See United States v.
Jones, 836 F.3d 896, 899 (8th Cir. 2016) (the burden is on the defendant to establish a sentence
reduction is warranted under 18 U.S.C. § 3582(c)(2)).
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 608) is
DENIED.
IT IS SO ORDERED.
Dated this 14th day of January, 2025.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
7
Case 1:17-cr-00083-DMT Document 612 Filed 01/14/25 Page 7 of 7