U.S. v. Chubb

Full title: UNITED STATES OF AMERICA, Plaintiff, v. CHARLES CHUBB, Defendant

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Mar 25, 2009

Case No.: CR-2-92-009 (S.D. Ohio Mar. 25, 2009)

Opinion

Case No.: CR-2-92-009.

March 25, 2009

ORDER

GEORGE SMITH, District Judge

This matter is before the Court on Defendant Charles Chubb's Pro Se Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 65). This Motion was filed on August 4, 2008. Defendant is seeking a reduction in the term of imprisonment imposed based on a guideline sentencing range that has subsequently been lowered and made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u). On October 15, 2008, the Government filed is Response in Opposition to Defendant's Motion (Doc. 68). Defendant's Motion is now ripe for review.

Pursuant to this Court's General Order No. 08-03 filed February 22, 2008, the United States Attorney's office, the Federal Public Defender, and the Probation Department conducted a review of potential defendants who may be eligible for sentence reductions under the retroactivity provision of 18 U.S.C. § 3582(c). Defendant Chubb's case has been reviewed and all the parties are in agreement that the Defendant's Motion must be denied because the Defendant was designated a career offender. ( See Doc. 68 at 1). The guideline amendment does not have the effect of lowering the Defendant's guideline range. Therefore, Defendant's sentence is not affected by the Amendment. No reduction of sentence may occur when the application of the pertinent amendment does not result in a different sentencing range. See United States v. Gonzalez-Balderas, 105 F.3d 981, 984 (5^th Cir. 1997).

Whether to grant a reduction of sentence pursuant to § 3582(c)(2) is within the discretion of the court. United States v. Ursery, 109 F.3d 1129, 1137 (6^th Cir. 1997). Although a defendant may qualify for a reduction in sentence, a reduction is not automatic. See United States v. Vautier, 144 F.3d 756, 760 (11^th Cir. 1998) ("The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary."). In considering whether a reduced sentence is appropriate, this court must consider the factors in 18 U.S.C. § 3553(a) to the extent that they are applicable. See § 3582(c)(2).

In the case at bar, Defendant's sentence did not rest on the crack cocaine provision in Section 2D1.1 of the United States Sentencing Guidelines. Under the version of Section 2D1.1 in effect at the time of Defendant's sentencing, the Defendant's base offense level for the crack offense was 28. However, the Defendant was a career offender, based on his prior convictions for drug trafficking and two crimes of violence, therefore his base offense level was increased to a 34 pursuant to Section 4B1.1 of the United States Sentencing Guidelines. That enhancement is unaffected by Amendment 706 and therefore Defendant's offense level remains exactly what it was at the time of sentencing.

Based on the aforementioned, Defendant's Motion for Reduction of Sentence is DENIED. The sentencing enhancement that provided the basis for Defendant's sentenced was not affected by Amendment 706 and therefore pursuant to Section 1B1.10 of the United States Sentencing Guidelines, Defendant's sentence must remain the same.

Prior to filing its response, the Government filed a motion to stay ruling on Defendant's Motion (Doc. 67). That Motion is now moot. Similarly, prior to filing his response, Defendant filed a motion for extension of time to do so (Doc. 69) and that motion is now moot.

The Clerk shall remove Documents 65, 67 and 69 from the Court's pending motions list.

IT IS SO ORDERED.