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,
__________________
Assistant United States Attorney, on Motion for
for appellee.

and

Jean B. We
___________
Summary Disposit

____________________
June 14, 1993
____________________

Per Curiam.
__________
guilty

to attempt

violation of

March 1992, Barbara

and conspiracy

21 U.S.C.

1992,

she received

level

for acceptance

3E1.1.

In

846.

to distribute

cocaine in

At sentencing on

August 11,

two-level reduction
of

responsibility

She did not appeal her sentence.

1, 1992, section

3E1.1 was amended

one-level reduction in base

timely plead guilty so

After the

28

to

2255

sentence, citing the

in base
under

offense

U.S.S.G.

Effective November

to permit an

additional

offense level for defendants who

that the government does not

prepare for trial.

U.S.C.

Desouza pled

vacate,

have to

amendment, Desouza moved under

set

aside

or

change in the guideline.

correct

her

The district

court denied her motion, and she appealed.

In United States
_____________
1990),

we

v. Havener, 905 F.2d

_______

considered whether

offender guideline, U.S.S.G.

applied.

We now affirm.

an

amendment

4B1.1, could

3 (1st Cir.

of the

career

be retroactively

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.
could not
was "not
found

We found that the amendment

be applied retroactively because

clarification; it

our

Commission's

conclusion

[was] change."

to

be confirmed

explanation of

suggested that the

by

the amendment;

the new sentence

Id.
___

at 5.

We

the

Sentencing

its explanation

amendment was not intended to clarify the

-2-

guideline, but to "authorize" an acceptance of responsibility

deduction in
4B1.1.

determining

the offense

In addition, U.S.S.G.

amendments intended

to be

level

under

section

1B1.10(d) lists the guideline

retroactive, but did

not include

the amendment
that

the

of section

amended

retroactively.

section

analysis

Desouza

281-83.

in

4B1.1

Havener
_______

relies

Sentencing Guidelines.
C, at

Accordingly,
could

we concluded

not

be

applied

Id.
___

The
amendment

4B1.1.

on

is

controls
Amendment

here.
459

to

See U.S.S.G. Manual (1992),

___

review of

The
the

Appendix

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

amended section
reduction in
the

assisted
own

permitted an

form.

reduction,

before the

by

certain

level

of

was taken,

investigating or

taking

one-level

who qualified for

offense

two-level reduction

authorities in

misconduct

had an

In addition,

entirely new

offense level for defendants

two-level

greater

3E1.1

in modified

steps

16 or
and had

prosecuting their
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

-3-

explanation

of

the

purpose

of

the amendment

confirms

that.

The

Commission stated that the amendment "provides

reduction

of

acceptance

one

of

can

for

responsibility

government in
misconduct."

level

certain

an additional

defendants

includes

assistance

the investigation or prosecution

Id. at 283.
___

designate

Sentencing

whose
to

the

of their own

Although the Sentencing Commission

substantive

change

as

retroactive,

the

Sentencing Commission did not include this one in the list of

those qualifying
lBl.10(d)

for

(listing

Accordingly, the

retroactive application.
amendments designated

district court

Desouza's

sentence even

under the

new version

reduction.

if

as retroactive).1

had no authority

it thought

qualify for the

U.S.S.G.

to modify

that Desouza

would

additional one-level

Havener, 905 F.2d at 6-7 (applying this rationale

_______

to deny retroactive application of an amendment to the career

offender
F.2d

--,

guideline); see also United States v.

________________________
1993

WL

98298

(2d

Cir.

1993)

Caceda, -______

(applying

this

rationale to deny retroactive application of Amendment 459).

We conclude
applied retroactively

that amended section 3E1.1

to permit

Desouza an

may not be

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 district court is affirmed.
________

The judgment of

-5-