
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                                 ____________________                      Per Curiam.   In  March 1992, Barbara  Desouza pled                      __________            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                                         -2-            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                                         -3-            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-                                            ____________________            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).                                         -4-            level reduction for timely pleading guilty.   The judgment of            the district court is affirmed.                                  ________                                         -5-
