Opinion
CASE NO. 1:07CR500
11-08-2012
UNITED STATES OF AMERICA PLAINTIFF, v. FADIL BARRETT, DEFENDANT.
JUDGE SARA LIOI
MEMORANDUM OPINION &
ORDER
Before the Court is Defendant Fadil Barrett's ("Defendant")'s Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 55.) The United States of America ("the Government") responded in opposition to Defendant's motion. (Doc. No. 56.) For the reasons set forth below, Defendant's motion is DENIED.
I. BACKGROUND
Defendant moves this Court to reduce his sentence pursuant to § 3582(c)(2), Amendment 750 to U.S.S.G. §2D1.1 of the U.S. Sentencing Guidelines Manual, and the U.S. Sentencing Commission's decision to retroactively apply Amendment 750 to certain offense levels for the illegal possession of crack cocaine. The Government responds that Defendant's sentence should not be reduced since Defendant was not sentenced based on §2D1.1 but based upon a statutory mandatory minimum sentence, as well as the career offender guidelines under U.S.S.G. §4B1.1, both of which remain unaffected by Amendment 750.
On January 11, 2008, Defendant pled guilty to one count of possession with intent to distribute 50 grams or more of cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. On that same day, the Government filed a notice that set forth information that Defendant was a career offender pursuant to §4B1.1. (Doc. No. 35.)
There is no dispute that based on the initial advisory guideline calculations and a three level reduction for acceptance of responsibility, Defendant was subject to an adjusted offense level of 27. Based on Defendant's prior felony drug convictions, the Court determined that Defendant was a career offender pursuant to §4B1.1, with an offense level of 37 and a Criminal History Category of VI. Additionally, the Defendant was subject to a statutorily required mandatory minimum sentence of life, also resulting in an offense level of 37. Since these calculations were greater than the adjusted advisory guideline calculation, the career offender guidelines and statutory mandatory minimum applied. The Court then lowered Defendant's offense level by 3 for acceptance of responsibility, resulting in an adjusted total of 34. Additionally, the Court granted the Government's motion for a 5-level reduction for substantial assistance pursuant to U.S.S.G. §5K1.1 and Rule 35. Therefore, Defendant's final offense level was 29 with a Criminal History Category of VI, resulting in a sentencing range of 151 to 188 months. The Court sentenced Defendant to a term of imprisonment of 156 months. However, upon the Government's subsequent motion following Defendant's additional cooperation, the Court further reduced Defendant's sentence to 140 months.
The base offense level for Defendant's offense was 30.
Defendant previously filed a motion under § 3582(c)(2), seeking a sentence reduction based on Amendment 706. (Doc. No. 42.) This Court denied the motion, concluding that the Court lacked authority to modify Defendant's sentence, which was based on the career offender guidelines and not the subsequently amended guideline range. (Doc. No. 49 at 110.)
Defendant's present motion maintains that the Court in fact relied upon a crack-offender guideline range in determining Defendant's ultimate sentence and, therefore, his sentence was "based on" a guideline range that has subsequently been lowered. (Doc. No. 55 at 149, citing United States v. Hameed, 614 F.3d 529 (6th Cir. 2010); United States v. Cardosa, 606 F.3d 16 (1st Cir. 2010); United States v. Moore, 541 F.3d 1323 (11th Cir. 2008)). Defendant asserts the relevant inquiry, therefore, is whether he was sentenced under the crack sentencing guidelines or the career-offender guidelines.
II. DISCUSSION
A. Statutory Background
Defendant asks this Court to reduce his sentence from 140 months to 119 months based on: (1) § 3582(c)(2) and the retroactive application of Amendment 750 to §2D1.1, which lowered the offense level for illegal possession of crack cocaine by two levels; and (2) application of the 16 month reduction for continued assistance to the government that he received post-sentencing.
A district court may resentence a defendant only as expressly provided by statute. United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001). Congress allows a district court to modify a term of imprisonment under 18 U.S.C. § 3582(c) when the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Section 3582(c) additionally states that the reduction must be "consistent with applicable policy statements issued by the Sentencing Commission."
On June 30, 2011, the Sentencing Commission adopted Amendment 750 to the Drug Quantity Table in §2D1.1, which altered the offense levels applicable to crack cocaine offenses. U.S.S.G §1B1.10 was subsequently revised on November 1, 2011 to reiterate the limit on relief available under § 3582(c). Specifically, Application Note 1(A) states that a reduction under § 3582(c)(2) is not authorized if "the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)." U.S.S.G. §1B1.10 cmt. n.1 (2011). The Commission then added Amendment 750 to the list of amendments in §1B1.10(c) that will be applied retroactively, effective as of November 1, 2011.
In this case, the Court must determine whether Defendant's sentence was based on a sentencing range that has subsequently been modified by Amendment 750 and whether the proposed reduction is consistent with the Commission's guidelines and policy statements.
B. Analysis
This Court previously determined that it did not have jurisdiction to reduce Defendant's sentence under § 3582(c)(2) because his sentence was based on the career offender guidelines. Defendant argues, however, that the Court based his sentence on a departure from the crack guideline range and that the resulting sentence was thus actually "based on" a guideline range that has been subsequently lowered. Therefore, he argues that Amendment 750 directly affects his sentencing range, and should be applied retroactively to reduce his sentence.
The Government responds that Amendment 750 does not lower the defendant's applicable guideline range. First, the Government argues that the amendment has no effect on the career-offender guideline, which was one basis upon which Defendant guideline sentence rested. Further, the Government asserts that it is undisputed that Defendant was also subject to a statutory mandatory term of life imprisonment, which is also unaffected by the amendment and has not been retroactively reduced by subsequent amendment. The Government is correct in its analysis.
As this Court has already stated in its order denying Defendant's previous request for a reduction pursuant to Amendment 706, the Court ultimately calculated Defendant's sentencing range based on the increased offense level set forth in the career offender guidelines, as well as based upon the applicable statutory mandatory minimum. Contrary to Defendant's assertions otherwise, his sentence was not "based on" the initial advisory calculation in §2D1.1.
Under the version of §2D1.1 in effect at sentencing, Defendant's base offense level for the crack offense was 30, which would be reduced by Amendment 750. However, Defendant's base offense level was increased to 37 pursuant to the career offender guidelines in §4B1.1 and the applicable statutory mandatory minimum, which, as it turned out, resulted in the same offense level calculation. As this Court previously noted,
While the Court may have initially discussed the advisory guideline range applying §2D1.1 calculations, once Defendant was held to be a career offender under § 4B1.1, the career offender range governed. Thus, the career offender guideline range set forth in §4B1.1 became the basis of Defendant's sentence, for purposes of § 3582(c)(2).(Doc. No. 49 at 111.) (emphasis added). Further, the Court noted that, "Notwithstanding all these calculations, and given the Section 841(b) enhancement, there's a mandatory minimum sentence of life for this offense." (Id. at 122.) In either case, the offense level is 37. The Government then made a motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. §5K1.1, permitting a departure below both the mandatory minimum and the Guidelines range, based on Defendant's substantial assistance.(Id.)The Court granted the motion and imposed a sentence of 156 months. Defendant's ultimate sentence was thus based on a departure from the career offender guidelines and the mandatory minimum calculation.
Defendant's reliance on Hameed, to the contrary, is misplaced. In Hameed, the Sixth Circuit held that, unlike any other case the court had previously considered, the defendant's sentence range was not "derived exclusively" from a career offender guideline or mandatory minimum. Instead, in that case, it was clear that the judge actually relied on the crack guidelines when he began his substantial assistance departure analysis from the base offense level applicable under §2D1.1, and Amendment 706 subsequently lowered those guidelines. Thus, the Court concluded that Hameed's sentence was "based on" a subsequently lowered guideline range.
The circumstances in Hameed are readily distinguishable from this case. Unlike in Hameed, this Court did not impose a sentence based upon the crack-cocaine base offense levels, nor did the Court refer to the crack cocaine guidelines in establishing the offense level from which it ultimately departed. Rather, Defendant's ultimate sentence was based on a departure from the career offender guidelines and the statutory mandatory minimum, both of which resulted in the same offense level of 37 on the Sentencing Table.
Amendment 750 does not affect the career offender enhancement applicable to Defendant and, therefore, he is ineligible for a sentence reduction under § 3582(c)(2). See United States v. Williams, 607 F.3d 1123, 1126 n. 2 (6th Cir.2010) (holding that defendant was ineligible for sentence reduction when the district judge granted a § 5K1.1 departure from career-offender guidelines but did not use crack guidelines to select the final sentence, such that "the court's guidelines calculations remained at all times based on the career offender provisions" (emphasis added)); United States v. Leasure, 331 F. App'x 370, 378 (6th Cir. 2009) (holding that defendant was ineligible for sentence reduction when the district judge granted a 62-month departure from career-offender range, but gave no indication that the final sentence fell within the crack guidelines range). Indeed, each circuit has addressed the very same career offender scenario presented in this case with regard to a retroactive amendment to the crack guideline, and they have unanimously held that retroactive amendments to the crack guidelines are irrelevant to a defendant sentenced as a career offender. (See Government's Opposition Brief, Doc. No. 56 at 160) (collecting cases).
Moreover, Amendment 750 has no effect on the statutory mandatory minimum that would have been applicable to Defendant regardless of his career offender classification. In Hameed, although the majority ultimately found that the district court's sentence was "based on" a subsequently lowered sentencing range, the Sixth Circuit concluded that the defendant was still ineligible for a sentence reduction because the retroactive amendment did not lower the applicable mandatory minimum guideline range -- the starting point from which the district court should have calculated the substantial assistance departure. See e.g., Hameed, 614 F.3d at 268 (district court erred when it measured departure from offense level prescribed by §2D1.1 rather than from statutory mandatory minimum, from which all departures should be measured).
In this case, as noted above, the Court expressly noted at sentencing that notwithstanding the career offender guidelines, Defendant was also subject to a mandatory minimum sentence of life imprisonment. (Doc. No. 52 at 122.) Under either scenario, though, the applicable offense level would have been 37. See U.S.S.G. §5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum shall be the guideline range.") Therefore, even absent the career offender enhancement, the starting point for Defendant's sentence would have still been the mandatory minimum because it was higher than the guideline range established pursuant to §2D.1(c)(5) of the guidelines. See e.g., Hameed, 614 F.3d at 268; United States v. Roa-Medina, 607 F.3d 255, 261 (1st Cir. 2010) (statutory mandatory minimum is the "legal 'starting point'" for the substantial assistance reduction); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008) (mandatory sentence sets bottom of the guideline range and departure is taken from this range). The sentencing commission has no authority to alter statutory mandatory minimum penalties. United States v. Carradine, 621 F.3d 575 (6th Cir. 2010). Indeed, every circuit has addressed the issue of the effect of retroactive guideline amendments where the defendant was subject to a statutory mandatory minimum that exceeded the guideline range and subsequently received a substantial assistance departure. In each case, the courts have rejected the application of the amendment to reduce a sentence. (See Government's Opposition Brief, Doc. No. 56 at 166-67) (collecting cases).
Finally, the courts uniformly agree that, pursuant to §1B1.10, when, as here, application of the retroactive amendment would not result in a different sentencing range, no reduction of sentence may occur. See e.g., United States v. Pembrook, 609 F.3d 381, 384 (6th Cir. 2010) cert. denied, 131 S. Ct. 1599 (2011) (collecting cases) (the term "applicable guideline range" in §1B1.10 providing that the statute does not authorize a sentence reduction if the guidelines amendment in question "does not have the effect of lowering the defendant's applicable guideline range" refers to a defendant's pre-departure guideline range).
Accordingly, since Defendant's sentence was based on the career offender guideline range, which has not been amended, as well as the applicable statutory mandatory minimum, which Amendment 750 has not altered, this Court lacks jurisdiction under § 3582(c)(2) to modify Defendant's sentence and his motion for a reduction of sentence is DENIED.
IT IS SO ORDERED.
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HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE