Opinion
Case No. 04-20029
03-08-2013
UNITED STATES OF AMERICA, Plaintiff, v. ALFRED FRANKLIN, Defendant.
Honorable David M. Lawson
ORDER DENYING MOTION FOR REDUCTION OF SENTENCE
UNDER 18 U.S.C. § 3582(c)(2)
Defendant Alfred Franklin was convicted on his plea of guilty of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(b)(1)(A). The government filed a penalty enhancement information under 21 U.S.C. § 851, which increased Franklin's mandatory minimum sentence to 20 years. The Court sentenced Franklin to 240 months — 20 years — on February 24, 2005. Franklin has filed a motion arguing that he is entitled to have his sentence reduced because the United States Sentencing Commission, following the enactment of the Fair Sentencing Act of 2010, issued new and more lenient sentencing guidelines applicable to offenses involving crack cocaine. Those guidelines was made retroactive by the Sentencing Commission as of November 1, 2011. He says that 18 U.S.C. § 3582(c)(2) authorizes the Court to reduce his sentence accordingly. It doesn't.
Under 18 U.S.C. § 3582(c)(2), a court may modify a term of imprisonment after it is imposed only under certain conditions:
[I]n the case of a defendant who 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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the(Emphasis added). Franklin alleges that because the Sentencing Commission has reduced the crack cocaine guidelines and made them retroactive, and his crime involved the distribution of crack cocaine, he is entitled to a sentence reduction.
term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The United State Court of Appeals for the Sixth Circuit has held that a defendant subjected to a statutory mandatory minimum sentence is not eligible for a reduction under section 3582(c)(2) because the guideline amendment does not lower the defendant's applicable guideline range. United States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009). Subsequently, that court held that the Sentencing Commission's amendment to a sentencing guideline range that does not affect a statutory mandatory minimum sentence will not provide the basis for a subsequent reduction of a sentence under section 3582(c)(2). United States v. McPherson, 629 F.3d 609, 611 (6th Cir. 2011).
The Court believes that Franklin's motion is governed by the precedent set forth in Johnson and McPhearson. Because Franklin's sentence is based on the statutory mandatory minimum and not a sentencing guideline range that was later lowered by the Sentencing Commission, he is not eligible for relief.
Accordingly, it is ORDERED that the defendant's motion for retroactive application of sentencing guidelines [dkt. #29] is DENIED.
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DAVID M. LAWSON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 8, 2013.
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DEBORAH R. TOFIL