govinfo:USCOURTS-okwd-5_21-cr-00271-0

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
 
UNITED STATES OF AMERICA, 
 
  Plaintiff, 
 
-vs- 
 
DUSTIN MICHAEL BUTLER, 
 
  Defendant. 
 
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) 
) 
) 
) Case No. CR-21-271-001-F 
)                           
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) 
) 
 
 
ORDER 
Defendant Dustin Michael Butler, proceeding pro se , has filed a motion 
seeking a sentence reduction pursuant to  18 U.S.C. § 3582(c)(2) and Amendment 
821 (Part B, Subpart 1) to the United States Sentencing Guidelines (U.S.S.G.).1  Doc. 
no. 54.  Upon review, the court conclude s that no response from plaintiff United 
States of America is required.   
On March 16, 2022, de fendant, pursuant to a plea agreement, pleaded guilty 
to Count 2 of the Indictment, charging possession of child pornography, in violation 
of 18 U.S.C. § 2252A(a)(5)(B). 
Subsequently, the Probation Office prepared a final presentence investigation 
report, which calculated a base offense level of 18.  Defendant then received a two-
level enhancement pursuant to U.S.S.G. § 2G2.2(b)(2) because the material involved 
a prepubescent minor or a minor who had not attained the age of 12 years; a four-
 
1 Because defendant is proceeding pro se, the court construes his filings liberally, but it does not 
act as his advocate.  Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008). 
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level enhancement pursuant  to U.S.S.G. § 2G2.2(b)(4 )(B) because the offense 
involved material that portrays (A) sadi stic or masochistic  conduct or other 
depictions of violence, or (B) sexual abuse or exploitation of an infant or toddler; a 
two-level enhancement pursuant to U.S.S .G. § 2G2.2(b)(6) because the offense 
involved the use of a computer or an interactive computer service for the possession, 
receipt, or for accessing with intent to  view the material; and a five-level 
enhancement under U.S.S.G. §2G2.2(b)(7)(D) because the offense involved 600 or 
more images, resulting in an adjusted offe nse level of 31.  After applying a three-
level adjustment pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility, 
defendant’s total offense level was 28.       
Based on his lack of criminal history,  defendant was assessed a criminal 
history score of zero, establishing a crimin al history category of I.  With a total 
offense level of 28 and a criminal hist ory category of I, defendant’s guideline 
imprisonment range was 78 months to 97 months.      
At sentencing, the court adopted the presentence investigation report without 
change.  The court varied downward a nd sentenced defendant to a term of 
imprisonment of 60 months and a term of supervised release of five years.  Judgment 
was entered on July 14, 2023.  Defendant did not file a direct appeal. 
In his motion, defendant asserts that  his sentence should be reduced based 
upon Amendment 821 (Part B, Subpart 1), effective November 1, 2023, because he 
received zero criminal history points. 
Generally, a court “may not modify a term of imprisonment once it has been 
imposed.”  18 U.S.C. § 3582(c).  Congress has provided a few exceptions to this 
rule.  One such exception is “the case of  a defendant who has been sentenced to a 
term of imprisonment based on a sentenci ng range that has subsequently been 
lowered by the Sentencing Commission.”  18 U.S.C. § 3582(c)(2).  In such a case 
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the court “may” reduce a sentence if doing so  would be consistent with the factors 
in 18 U.S.C. § 3553(a) and consistent with  applicable policy statements of the 
Sentencing Commission.  Id. 
The court follows a two-step process in considering defendant’s § 3582(c)(2) 
motion.  See, United States v. Battle , 706 F.3d 1313, 1317 (10 th Cir. 2013).  The 
court first determines whether defendant is eligible for a sentence reduction and the 
extent of the authorized reduction.  If the reduction is authorized, the court may 
consider any applicable 18 U.S.C.§ 3553(a) factors and “d etermine whether, in its 
discretion, the reduction authorized by reference to the policies relevant at step one 
is warranted in whole or in part under the particular circumstances of the case.”  Id. 
(quotation marks and citation omitted).      
Upon review of defendant’s motion,  the Probation Office’s Preliminary 
Report for Consideration of Sentence  Reduction Based on Amendment 821 (doc. 
no. 56), and the record, the court conclude s that defendant is not eligible for a 
sentence reduction.  While de fendant has a criminal hist ory score of zero, he does 
not qualify for an adjustment because he does not satisfy all ten criteria of U.S.S.G. 
§ 4C1.1(a).  Specifically, he does not satis fy all ten criteria because his offense 
qualifies as a sex offense.  See, U.S.S.G. § 4C1.1(a)(5) (“ the instant offense of 
conviction is not a sex offense”).  Although defendant argues to the contrary, based 
on the definition of “sex offense” as “an offense, perpetrated against a minor, under 
. . . chapter 110 of title 18, not in cluding a recordkeeping offense,” see, U.S.S.G. 
§ 4C1.1(b)(2) (Nov. 2023) (emphasis added), the court concludes that his offense is 
a sex offense for the reasons stated in United States v. Khan, Case No. 2:12-cr-
02901-MIS-KBM, ___ F. Supp. 3d ___, 2024 WL 3617545, at **7-9 (D.N.M. Aug. 
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1, 2024).2  Thus, because defendant’s offense qualifies as a sex o ffense, defendant 
is not eligible for a sentence reduction.     
In addition, defendant  was sentenced by the court to 60 months’ 
imprisonment.  Even if defendant’s tota l offense level were reduced by two points 
from 28 to 26, defendant’s amended guide line imprisonment range would be 63 to 
78 months.  Under U.S.S.G. § 1B1.10(b)(2)(A) and (B),  the court may not reduce 
the defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than 
the minimum of the amended guideline range, unless defendant’s term of 
imprisonment resulted from a government moti on to reflect substantial assistance.  
Defendant’s term of imprison ment of 60 months is less than the minimum of the 
amended guideline range of 63 to 78 months and it did not result from a government 
motion to reflect substantial assistance.  Consequently, the court may not reduce 
defendant’s sentence of 60 months u nder § 3582(c)(2) because it would not be 
consistent with the Sentencing Commission’s applicable policy statements.     
Accordingly, defendant Dustin Mich ael Butler’s motion for reduction of 
sentence pursuant to 18 U.S.C. § 3582(c) (2) and Amendment 821 (Part B, Subpart 
1) to the United States Sentencing Guidelines (doc. no. 54) is DISMISSED. 
IT IS SO ORDERED this 28th day of January, 2025. 
 
  
  
 
 
21-0271p014.docx 
 
2 The court notes that U.S.S.G. § 4C1.1(b)(2 ) was recently amended to exclude the language 
“perpetrated against a minor.” Compare, U.S.S.G. § 4C1.1(b)(2) (Nov. 2023) and U.S.S.G. 
§ 4C1.1(b)(2) (Nov. 2024).  However, the court a pplies the original langua ge of § 4C1.1(b)(2) 
since that is the language used in Amendment 821.  See, e.g., United States v. Morales, 122 F.4 th 
590, 596 n. 5 (5th Cir. 2024) (applying the original language of U.S.S.G. § 4C1.1(a)(10)). 
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