UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

)

v. ) No. 2:16 CR 55

)

MARK CHERRY )

OPINION and ORDER

On January 13, 2020, the court sentenced defendant Mark Cherry to a term of 188

months imprisonment for use of a firearm during and in relation to a narcotics crime

causing a death. (DE ## 144, 145.) Defendant recently submitted a pro se filing asking

the court to consider whether changes to the Sentencing Guidelines might affect his

case. (DE # 172.) The court interpreted this filing as a motion for a reduction in sentence

pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821 of the United States Sentencing

Guidelines. The court appointed counsel to assist defendant (DE # 175), but counsel

later moved to withdraw due to defendant’s ineligibility for relief (DE # 179.) For the

reasons that follow, defendant’s pro se motion is denied.

In April 2023, the United States Sentencing Commission voted to make changes

to how a defendant’s criminal history is calculated for sentencing. These changes,

generally referred to as “Amendment 821,” took effect on November 1, 2023. Part A of

Amendment 821 amended § 4A1.1 of the Sentencing Guidelines to limit the overall

impact of “status points” on certain offenders’ criminal history calculation. Part B of

Amendment 821 created a new § 4C1.1 guideline that provides a decrease of two

offense levels for offenders who did not receive any criminal history points under

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Chapter Four of the Guidelines and whose instant offense did not involve specified

aggravating factors. The Sentencing Commission has given retroactive effect to

Amendment 821. See N.D. Ind. Gen. Order 2023-32, available at https://

www.innd.uscourts.gov/sites/innd/files/2023-32.pdf. 

In this case, defendant does not qualify for a reduction in sentence under Part A

of Amendment 821. At sentencing, defendant’s criminal history category was calculated

at III based upon a total of six (6) criminal history points. (PSR ¶¶ 38, 39.) Part A

functions to lower defendant’s criminal history points from six (6) to four (4), but even

so, defendant’s criminal history category remains III. (See DE # 179.)

The court may only “reduce” a defendant’s sentence—that is, the court can act

only where “the guideline range applicable to that defendant has subsequently been

lowered.” USSG § 1B1.10(a)(1); 18 U.S.C. § 3582(c)(2). A reduction is not authorized

under § 3582(c)(2) if the guideline amendment did not have the effect of lowering the

defendant’s applicable guideline range. USSG § 1B1.10(a)(2). Because Part A of

Amendment 821 does not have any effect on defendant’s criminal history category, it

also does not have any effect on defendant’s guideline range. Thus, defendant is not

entitled to relief under 18 U.S.C. § 3582(c)(2) and Amendment 821 Part A.

Nor can Part B of Amendment 821 be of any assistance. Part B provides for a

decrease of two offense levels for certain offenders who did not receive any criminal

history points. Defendant did receive criminal history points, so Part B is inapplicable.

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In summary, defendant does not benefit from either Part A or B of Amendment

821 to the Sentencing Guidelines. Accordingly, his filing, interpreted as a motion under

18 U.S.C. § 3582(c)(2) and Amendment 821, must be DENIED. (DE # 172.)

SO ORDERED.

Date: June 4, 2024

s/James T. Moody

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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