2 F. 3d 1155 - United States v. Sondag

Jeffrey Alan Sondag, a federal prisoner, appeals from the district court's1 order denying his motion to reduce his sentence. We affirm.

In August 1991 the district court sentenced Sondag to seventy-eight months imprisonment, after he pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. In calculating Sondag's sentencing range, the court had awarded him a two-point reduction for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1(a). In January 1993, Sondag moved to reduce his offense level by another point under amended U.S.S.G. Sec. 3E1.1(b) (Nov. 1, 1992). The district court denied the motion, and he appealed.

As the district court observed, section 3E1.1(b) was not in effect when Sondag was sentenced. We construe his motion as one made under 18 U.S.C. Sec. 3582(c)(2) (court may reduce previously-imposed prison sentence when Sentencing Commission has lowered applicable sentencing range, if such reduction is consistent with applicable policy statements). His argument that section 3E1.1(b) should be applied retroactively to him is foreclosed by our recent decision in United States v. Dowty, No. 93-1634, slip op. at 3 (8th Cir. June 25, 1993) (per curiam) (analyzing retroactivity of section 3E1.1(b) under section 3582(c)(2) and concluding that section 3E1.1(b) is not retroactive).

Accordingly, we affirm.