UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2444
BARBARA BUSHWAY DESOUZA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Barbara Bushway DeSouza on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Jean B. Weld,
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Assistant United States Attorney, on Motion for Summary Disposition
for appellee.
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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.
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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
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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.
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The analysis in Havener controls here. The
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amendment Desouza relies on is Amendment 459 to the
Sentencing Guidelines. See U.S.S.G. Manual (1992), Appendix
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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
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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
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to deny retroactive application of an amendment to the career
offender guideline); see also United States v. Caceda, --
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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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