Order — United States v. Foster (Dkt. 49, W.D. Okla.)

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An order in United States v. Brian Lee Foster, Case No. CR-22-387-SLP, in the U.S. District Court for the Western District of Oklahoma, filed October 25, 2024 as Document 49. It dismisses the defendant's pro se Motion to Reduce Sentence (Doc. No. 44) under 18 U.S.C. § 3582(c)(2) and Amendment 821, which the government opposed (Doc. No. 47), after review of the Probation Office's preliminary report (Doc. No. 45). The order recounts that Foster pleaded guilty on November 15, 2022 to making a false statement to a financial institution under 18 U.S.C. § 1014, and that the August 7, 2023 presentence report added a six-level enhancement for a loss between $40,000 and $95,000 for a total offense level of 13. It then sets out the criteria of U.S.S.G. § 4C1.1(a).

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Case 5:22-cr-00387-SLP       Document 49       Filed 10/25/24    Page 1 of 4




              IN THE UNITED STATES DISTRICT COURT FOR THE
                     WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff,                                )
                                                 )
v.                                               )      Case No. CR-22-387-SLP
                                                 )
BRIAN LEE FOSTER,                                )
                                                 )
       Defendant.                                )

                                        ORDER

       Before the Court is Defendant’s pro se Motion to Reduce Sentence [Doc. No. 44].

Defendant seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 821 to the United States Sentencing Guidelines (U.S.S.G.). The Government

has filed a Response [Doc. No. 47] and opposes the requested relief. The Court has further

reviewed the Probation Office’s Preliminary Report for Consideration of Sentence

Reduction Based on Amendment 821 [Doc. No. 45].              For the reasons that follow,

Defendant’s Motion to Reduce Sentence is DISMISSED.

I.     Background

       On November 15, 2022, Defendant pleaded guilty to one count of making a false

statement to a financial institution, in violation of 18 U.S.C. § 1014. See Doc. Nos. 1, 21–

25. On August 7, 2023 the United States Probation Office filed its Final Presentence

Investigation Report (PSR). Doc. No. 34. The PSR calculated a base offense level of 7,

plus (1) a six-level enhancement because the loss was between $40,000 and $95,000, and

(2) a two-level enhancement because the offense involved the unauthorized use of any

       Case 5:22-cr-00387-SLP        Document 49      Filed 10/25/24     Page 2 of 4




means of identification unlawfully to obtain any other means of identification. Id. ¶¶ 40–

42. The PSR calculated an adjusted base level of 15. Id. ¶ 46. Defendant received a two-

level reduction for acceptance of responsibility. Id. ¶ 48. The resulting total offense level

was 13. Id. ¶ 50.

       The PSR calculated a total criminal history score of three. Id. ¶ 58. Defendant did

not receive any status points for committing the offense while under a criminal justice

sentence. Defendant’s criminal history score placed him in a criminal history category of

II. Id. ¶ 59. Combining Defendant’s total offense level of 13 and criminal history category

of II, the PSR recommended a sentence of 15 to 21 months’ imprisonment. Id. ¶ 95.

       On September 27, 2023, the Court adopted the PSR without change and sentenced

Defendant to 24 months’ imprisonment. Doc. No. 41, 42.

       On December 28, 2023, Defendant filed the pending Motion. He seeks a reduction

pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 821.

II.    Governing Standard

       “A district court does not have inherent authority to modify a previously imposed

sentence; it may do so only pursuant to statutory authorization.” United States v. Mendoza,

118 F.3d 707, 709 (10th Cir. 1997). One source of statutory authorization is section 3582

which allows for a possible reduction for 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.” 18 U.S.C. § 3582(c)(2).

       Section 3582(c)(2) “establishes a two-step inquiry.” Dillon v. United States, 560

U.S. 817, 826 (2010). “At step one, § 3582(c)(2) requires the court to follow the

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          Case 5:22-cr-00387-SLP         Document 49        Filed 10/25/24     Page 3 of 4




Commission’s instructions in [U.S.S.G.] § 1B1.10 to determine the prisoner’s eligibility

for a sentence modification and the extent of the reduction authorized.” Id. at 827. “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.” Id.

          Here, Defendant seeks a sentence reduction pursuant to Amendment 821 to the

U.S.S.G. which took effect on November 1, 2023, and applies retroactively. Part A of

Amendment 821 limits the criminal history impact of “status points,” and Subpart 1 of Part

B of Amendment 821 creates a new guideline, § 4C1.1, that provides for a decrease of two

offense levels for “Zero-Point Offenders.” See U.S. Sent’g Guidelines Manual app. C

Supp., amend. 821 (U.S. Sent’g Comm’n 2023). With respect to the guideline for zero-

point offenders, a defendant is eligible for a two-level reduction in the offense level if he

or she meets all ten of the listed criteria. 1



1
    Those ten criteria are:
         (1) the defendant did not receive any criminal history points from Chapter Four,
         Part A;
         (2) the defendant did not receive an adjustment under § 3A1.4 (Terrorism);
         (3) the defendant did not use violence or credible threats of violence in connection
         with the offense;
         (4) the offense did not result in death or serious bodily injury;
         (5) the instant offense of conviction is not a sex offense;
         (6) the defendant did not personally cause substantial financial hardship;
         (7) the defendant did not possess, receive, purchase, transport, transfer, sell, or
         otherwise dispose of a firearm or other dangerous weapon (or induce another
         participant to do so) in connection with the offense;
         (8) the instant offense of conviction is not covered by § 2H1.1 (Offenses
         Involving Individual Rights);
                                                  3

       Case 5:22-cr-00387-SLP         Document 49       Filed 10/25/24     Page 4 of 4




III.   Analysis

       As set forth, Defendant had a total of three criminal history points. PSR ¶ 58. And

he did not receive any status points for committing the offense while under a criminal

justice sentence. Thus, a sentence reduction is not authorized under 18 U.S.C. § 3582(c)(2)

because Defendant is not eligible under either Part A or Part B of Amendment 821.

IV.    Conclusion

       For the reasons set forth, the Court lacks jurisdiction to reduce Defendant’s

sentence. See United States v. White, 765 F.3d 1240, 1242 (10th Cir. 2014) (“[D]ismissal

for lack of jurisdiction rather than denial on the merits is the appropriate disposition of

[defendant’s] § 3582(c)(2) motion.”).

       IT IS THEREFORE ORDERED that Defendant’s pro se Motion to Reduce

Sentence [Doc. No. 44] is DISMISSED.

       IT IS SO ORDERED this 25th day of October, 2024.




       (9) the defendant did not receive an adjustment under § 3A1.1 (Hate Crime
       Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense);
       and
       (10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating
       Role) and was not engaged in a continuing criminal enterprise, as defined in 21
       U.S.C. § 848 . . . .

U.S.S.G. § 4C1.1(a).

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