Opinion
Case No. 2:02-cr-34-1, 2:03-cr-07, 2:06-cv-1014.
March 16, 2009
ORDER
This matter is before the court on the defendant's memorandum for relief from judgment. This motion is in fact a motion for reduction of sentence under the new amendments to the United States Sentencing Guidelines ("U.S.S.G.") applicable to cocaine base offenses. Although defendant's motion bears the case number 2:03-cr-07, defendant was not convicted in that case of a crack cocaine offense. Rather, defendant was convicted in that case of the offense of possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a). Since the new crack cocaine guidelines are not applicable to that offense, the motion is denied as to that case number.
Defendant was convicted in case number 2:02-cr-34-1 on Count 1, a firearm charge, and Count 2, a crack cocaine offense involving in excess of five grams of crack cocaine under 21 U.S.C. § 841(a)(1). The clerk is directed to file defendant's motion under that case number. The defendant's total offense level was 27, Criminal History Category V, with a guideline sentencing range of 120 to 150 months. The drug charge involving that quantity would ordinarily carry a mandatory minimum term of incarceration of five years. However, defendant's case was also subject to an enhanced penalty under 21 U.S.C. § 851 and 21 U.S.C. § 841(b)(1)(B)(iii) based on a prior felony drug conviction, which raised the mandatory minimum term of incarceration to ten years. Defendant was sentenced in case number 2:02-cr-34-1 on October 30, 2003, to the mandatory minimum sentence of 120 months incarceration on Counts 1 and 2, to run concurrently.
Under the amended Guidelines, defendant's new total offense level would ordinarily be a total offense level of 25, Criminal History Category V, with a sentencing range of 100 to 125 months. However, defendant is not entitled to a reduction of his sentence of 120 months, which is the mandatory minimum sentence required for the offense of conviction. See U.S.S.G. 1B1.10(a)(2)(B) and Application Note 1(a) (a reduction is not consistent with this policy statement and is not authorized under 18 U.S.C. § 3582(c)(2) if the amendment does not have the effect of lowering defendant's applicable guideline range, as in cases where the statutory mandatory minimum term of imprisonment controls).
Since a reduction in defendant's sentence based on the amendments to the cocaine base guidelines is not permitted due to the statutory mandatory minimum sentence required by law, defendant's motion for relief from judgment in the form of a reduction of his sentence is denied.