Opinion
No. 95-cr-40039-JPG.
February 4, 2010
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Bryant Larkin's pro se Motion (Doc. 42) for a reduction of his criminal sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines Manual (hereinafter "U.S.S.G.") § 1B1.10. The Court appointed counsel for Larkin, and said counsel has since moved to withdraw on the basis that she can make no non-frivolous arguments in support of Larkin's request. (See Doc. 46); see also Anders v. California, 386 U.S. 738, 744 (1967). Despite the allowance of a response period by this Court ( see Doc. 47), neither Larkin nor the Government responded to defense counsel's motion.
Larkin pled guilty to three counts of distribution and possession with intent to distribute crack cocaine. At sentencing, the Court found by a preponderance of the evidence that Larkin's relevant conduct was at least 50 grams but not more than 150 grams of crack cocaine, which under U.S.S.G. § 2D1.1 yielded a base offense level of 32. His offense level was reduced by three points under U.S.S.G. § 3E1.1 for acceptance of responsibility. However, the Court found that Larkin was a career offender under U.S.S.G. § 4B1.1 based on prior drug or violent felony convictions, which raised his offense level to 34, again reduced by 3 to 31 for acceptance of responsibility. Considering Larkin's criminal history category of VI, established by his career offender status under U.S.S.G. § 4B1.1, this yielded a sentencing range of 188 to 235 months in prison. The Court imposed a sentence of 235 months. Larkin now asks the Court to apply recent changes to U.S.S.G. § 2D1.1 to lower his sentence.
The third count represented a forfeiture count.
Section 3582(c)(2) allows the Court to reduce a defendant's previously imposed sentence where "a defendant . . . has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o)." In doing so, the Court must consider the factors set forth in 18 U.S.C. § 3553(a) and must ensure that any reduction "is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) (2006). Thus, a defendant urging a sentence reduction under § 3582(c)(2) must satisfy two criteria: (1) the Sentencing Commission must have lowered the applicable guideline sentencing range, and (2) the reduction must be consistent with applicable policy statements issued by the Sentencing Commission. If the defendant cannot satisfy the first criterion, the Court has no subject matter jurisdiction to consider any reduction request. United States v. Lawrence, 535 F.3d 631, 637-38 (7th Cir. 2008); see United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2008), cert. denied sub nom. McKnight v. United States, 129 S. Ct. 1924 (2009).
Larkin cannot satisfy the first criterion because he was not "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o)." 18 U.S.C. § 3582(c)(2) (2006). Amendments 706 and 711 amended U.S.S.G. § 2D1.1(c) as of November 1, 2007, to lower by two points the base offense levels associated with various amounts of crack cocaine. The Sentencing Commission amended U.S.S.G. § 2D1.1(c) intending to alter the disparity in sentences involving crack cocaine and sentences involving powder cocaine. Larkin, however, was sentenced based on his base offense level set forth in U.S.S.G. § 4B1.1, not his base offense level set forth in U.S.S.G. § 2D1.1. See Forman, 553 F.3d at 589-90. Thus, his guideline range has not been lowered, and he cannot satisfy the first criterion under 18 U.S.C. § 3582(c)(2) for obtaining a sentence reduction.
Because Larkin cannot satisfy the first criterion under 18 U.S.C. § 3582(c)(2) for obtaining a sentence reduction, the Court does not have subject matter jurisdiction to consider his reduction request. See Forman, 553 F.3d at 588; Lawrence, 535 F.3d at 637-38. The Court therefore GRANTS counsel's Motion (Doc. 46) to withdraw and DISMISSES Larkin's pro se Motion (Doc. 42) for a sentence reduction for lack of jurisdiction.
The Court DIRECTS the Clerk of Court to mail a copy of this Memorandum and Order to Bryant Larkin, Reg. #03406-025, FCI Jesup, Federal Correctional Institution, 2680 301 South, Jesup, GA 31599.
IT IS SO ORDERED.