Opinion
Case No.: CR-2-93-101.
July 27, 2009
ORDER
This matter is before the Court on Defendant James L. Ewing's Pro Se Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 60). This Motion was filed on December 8, 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 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines § 1B1.10(a)(1). On March 26, 2009, the Government filed is Response in Opposition to Defendant's Motion (Doc. 62). On April 9, 2009, Defendant filed a reply. 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 Ewing's case has been reviewed and all the aforementioned parties are in agreement that the Defendant's Motion must be denied because the Defendant was designated a career offender. ( See Doc. 62 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 (5th 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 (6th 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 (11th 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).
Defendant was sentenced 240 months on Count 1, conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 300 months on Count 2, possession with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), with the sentences to run concurrently with each other. Defendant was also sentenced to 3 years supervised release on Count 1 and 4 years supervised release on Count 2 to run concurrently with each other.
Defendant argues that his base offense level of 32 should be reduced to a 30 and with a criminal history VI, his new sentencing range would be 168 to 210 months. Further, Defendant requests that the Court not apply the career offender enhancement. Defendant argues "[i]f the district court had correctly calculated Mr. Ewing's criminal history, it would not have sentenced Mr. Ewing as a career offender." (Def.'s Mot. at 7). Defendant is challenging whether the burglary charge should have been considered a crime of violence.
After careful review of Defendant's case, the Court finds that 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 a 32. However, the Defendant was a career offender, based on his prior convictions for burglary and aggravated robbery. Accordingly, 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.
Further, Defendant's argument with respect to the career offender status cannot be addressed by the Court. Generally, a district court has no jurisdiction to resentence a defendant. The career offender issue was properly raised by Defendant on appeal, but rejected by the Sixth Circuit. See United States v. Ewing, 1994 WL 577055 (October 18, 1994). Therefore, since 18 U.S.C. § 3582(c)(2) does not apply to Defendant Ewing's status as a career offender, the Court is unable to amend his sentence.
Based on the aforementioned, Defendant's Motion for Reduction of Sentence is DENIED. The sentencing enhancement that provided the basis for Defendant's sentence 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.
The Clerk shall remove Document 60 from the Court's pending motions list.