Opinion
No. 7:12-CR-36-BO-1
08-22-2018
UNITED STATES OF AMERICA v. OLDEN TERRY, III
ORDER
This cause comes before the Court on defendant's motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). [DE 105]. The government has responded in opposition, and the matter is ripe for ruling. For the reasons that follow's defendant's motion is denied.
BACKGROUND
Defendant, Terry, pleaded guilty, pursuant to a written plea agreement, to one count of attempt to distribute 28 grams or more of cocaine base (crack) in violation of 21 U.S.C. § 841 (a)(1) and one count of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). [DE 28]. On February 7, 2013, Terry was sentenced to 235 months' imprisonment on the narcotics charge followed by a consecutive 60 months' imprisonment on the firearm charge. [DE 36]. This resulted in a total term of 295 months' imprisonment. Terry's direct appeal of his conviction and sentence was dismissed by the court of appeals on January 15, 2014. [DE 53].
On May 11, 2015, this Court dismissed a motion by Terry under 28 U.S.C. § 2255 and denied a certificate of appealability. [DE 72]. This Court subsequently denied two motions for reconsideration filed by Terry. [DE 75, 78]. On November 8, 2016, the court of appeals denied Terry's petition for authorization to file a second or successive § 2255. [DE 85]. Terry filed the instant motion on May 9, 2018. [DE 105]. In his motion, Terry seeks a reduction in his sentence under 18 U.S.C. § 3582(c)(2) in light of Amendment 782 to the United States Sentencing Guidelines.
DISCUSSION
A court "may not modify a term of imprisonment once it has been imposed except" under limited circumstances. 18 U.S.C. § 3582(c). One of those circumstances is where the 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) . . .." 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a). "In such cases, Congress has authorized courts to reduce the 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." Dillon v. United States, 560 U.S. 817, 824-25 (2010) (internal quotation and citation omitted). To determine whether a prisoner is eligible for a modification of his sentence under § 3582(c)(2), a court "begin[s] by 'determin[ing] the amended guideline range that would have been applicable to the defendant' had the relevant amendment been in effect at the time of the initial sentencing." Id. at 827 (alteration in original) (quoting U.S.S.G. § 1B1.10(b)(1)).
At sentencing, Terry was determined to be a U.S. Sentencing Guidelines career offender. See U.S.S.G. § 4B1.1. Although his offense level was calculated based on U.S.S.G. § 2D1.1, as it resulted in a higher offense level than the career offender offense level, see [DE 33 ¶ 45], Terry's advisory Guidelines range was calculated based on his career offender classification under U.S.S.G. § 4B1.1(c). Id. ¶ 51. Because Terry's advisory Guidelines range was calculated based on his career offender designation, he is not eligible for a reduction under Amendment 782 to the Guidelines. See U.S.S.G. § 1B.10; United States v. Hodge, 721 F.3d 1279, 1280 (10th Cir. 2013); United States v. Riley, 726 F.3d 756, 759 (6th Cir. 2013); United States v. Ervin, 533 F. App'x 189 (4th Cir. 2013) (unpublished); Meadows v. United States, No. 4:12-CR-78-D, 2015 WL 7451295, at *4 (E.D.N.C. Nov. 23, 2015).
CONCLUSION
Accordingly, for the foregoing reasons, defendant's motion to reduce sentence [DE 105] is DENIED. SO ORDERED, this 22 day of August, 2018.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE