Opinion
CRIMINAL ACTION NO. 6:04-01-KKC
04-14-2015
UNITED STATES OF AMERICA, Plaintiff, v. ELMER BOYD STEWART, Defendant.
OPINION AND ORDER
This matter is before the Court on defendant Elmer Stewart's motion for a sentence reduction pursuant to Amendment 782 to the United States Sentencing Guidelines (DE 39). Amendment 782 reduces by two the offense levels assigned in the Drug Quantity Table, U.S.S.G. § 2D1.1, resulting in lower guideline ranges for most drug trafficking offenses.
Stewart pleaded guilty to two charges, one of which was a drug trafficking offense in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 851. (DE 31, Judgment). According to the presentence report, the defendant's Base Offense Level under then-existing U.S.S.G. § 2D1.1 was 14. However, the presentence report provided that Stewart's prior felony convictions qualified him as a career offender under U.S.S.G. § 4B1.1, with an enhanced offense level of 34. With a three-level reduction for acceptance of responsibility, Stewart's advisory guideline range, as a career offender, was 188 to 235 months. The Court sentenced the defendant to 204 months of imprisonment. (DE 31, Judgment).
Stewart is not eligible for a sentence reduction under Amendment 782. Once a defendant is determined to be a career offender under § 4B1.1, the career offender guideline range controls if it is greater than the initial advisory guideline range. U.S.S.G. § 4B1.1(b). In this case, the Court calculated Stewart's sentence based on the career offender guidelines. When a sentencing range is derived from § 4B1.1 and not the Drug Quantity Table in § 2D1.1, Amendment 782 does not apply. See United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013) (holding previous amendments to drug quantity table did not apply to lower sentence of career offender); see, e.g., United States v. Sullivan, No. 5:14-cr-7-06, 2015 WL 1524089, at *2 (N.D. Ohio Apr. 3, 2015) (finding defendant not eligible for a sentence reduction under Amendment 782 because his sentencing range was determined by his career offender status); United States v. Nicholson, No. 3:11-194, 2015 WL 403997, at *2 (M.D. Tenn. Jan. 29, 2015) (same). Therefore, because he was sentenced based on the career offender guideline range, IT IS ORDERED that the Stewart's motion for a sentence reduction (DE 39) is DENIED.
Stewart has also moved the Court to appoint counsel to represent him on this matter (DE 39). There is no constitutional right to counsel or a hearing on a motion for a sentence reduction filed under 18 U.S.C. § 3582(c)(2). See United States v. Harris, 568 F.3d 666, 669 (8th Cir. 2009); United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 465 (2d Cir. 1995). Because here it is clear on the record that Stewart is not eligible for a sentence reduction, the Court HEREBY ORDERS that his motion to appoint counsel (DE 39) is DENIED.
Dated April 14, 2015.
/s/
KAREN K. CALDWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY