Opinion
Case No. 1:07CR500.
July 30, 2010
OPINION AND ORDER
Before the Court is Defendant Fadil Barrett's ("Defendant") Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 42.) The United States of America ("the Government") responded in opposition to Defendant's motion. (Doc. No. 48.) For the reasons set forth below, Defendant's motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant moves this Court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), Amendment 706 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 706 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 on the career offender guidelines under § 4B1.1, which remain unaffected by Amendment 706.
While Defendant fails to mention which specific amendment to U.S.S.G. § 2D1.1 he believes applies to the instant case, the Court and the Government note that it is Amendment 706.
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 U.S.S.G. § 4B1.1. (Doc. No. 35.)
There is no dispute that, based on the initial advisory guideline calculations, Defendant had a total offense level of 27 and a Criminal History Category of VI. The initial analysis resulted in an advisory guideline range of 130 to 162 months. However, the Court found that Defendant was a career offender pursuant to § 4B1.1, and based upon that designation, Defendant became subject to the career offender guidelines, which dictate an offense level 37 for Defendant's case. Since his level under the career offender guidelines was greater than the advisory guideline calculation of 27, pursuant to § 4B1.1(b), the career offender guidelines applied. The Court lowered Defendant's offense level by 3 for acceptance of responsibility, resulting in an adjusted total of 34. Additionally, the Government moved 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.
Defendant was ultimately sentenced to a term of imprisonment of 140 months.
II. LAW AND ANALYSIS A. Statutory Background
Defendant asks this Court to reduce his sentence from 140 months to 130 months based on 18 U.S.C. § 3582(c)(2) and the retroactive application of Amendment 706 to U.S.S.G. § 2D1.1, which lowered the offense level for illegal possession of crack cocaine by two levels.
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."
The Sentencing Commission, on November 1, 2007, adopted Amendment 706 to the Drug Quantity Table in U.S.S.G. § 2D1.1, which reduced the base offense level for most crack cocaine offenses. U.S.S.G. § 1B1.10 was thereafter revised on December 11, 2007 to reiterate the limits on relief available under 18 U.S.C. § 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 (2010). The Commission then added Amendment 706 to the list of amendments in U.S.S.G. § 1B.1.10(c) that will be applied retroactively, effective as of March 3, 2008.
This Court must determine whether Defendant's sentence was based on a sentencing range that has subsequently been modified by Amendment 706 and whether the proposed reduction is consistent with the Commission's guidelines and policy statements.
B. The Court is not authorized to modify Defendant's sentence because his sentence was based on the career offender guidelines, not a subsequently amended guideline range.
Defendant argues that the Court has authority to impose a sentence below the career offender guideline range pursuant to 18 U.S.C. § 3553(e) and (f). Defendant additionally cites 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.1, and the December 11, 2007 decision of the United States Sentencing Commission to retroactively apply § 2D1.1 as amended to crack cocaine offenses, yet provides no basis for why such statutes apply in the instant case. Defendant concludes his short motion by requesting that this Court reduce his sentence from 140 months to 130 months based on a sentencing range of 130 to 162 months for an offense level 27.
The Government opposes Defendant's motion for sentence reduction, arguing that Amendment 706 has not amended Defendant's sentencing range, which was based on the career offender guidelines set forth in § 4B1.1. Therefore, the Government argues, the Court lacks jurisdiction under § 3582(c)(2) to modify Defendant's sentence.
Once a Defendant is determined to be a career offender under § 4B1.1, if the career offender sentencing range is greater than the initial advisory guideline range, the career offender range controls. U.S.S.G. § 4B1.1(b). Here, the initial advisory calculation resulted in an offense level 27. Once Defendant was found to be a career offender, his offense level became 37. Therefore, the Court ultimately calculated Defendant's sentencing range based on this increased offense level set forth in the career offender guidelines.
When the sentencing range is derived from § 4B1.1, and not the amended Drug Quantity Table in § 2D1.1, Amendment 706 is not applicable. United States v. Perdue, 572 F.3d 288, 292 (6th Cir. 2009) (district court may not reduce a defendant's sentence pursuant to Amendment 706 if the defendant was originally sentenced as a career offender); United States v. Alexander, 543 F.3d 819, 825 (6th Cir. 2008) (crack cocaine amendments do not affect sentencing ranges derived from the unamended career offender provision). 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).
Further, Application Note 1(A) to § 1B1.10 clarifies that a sentence reduction under § 3582(c)(2) is expressly prohibited when the amendment does not reduce the defendant's 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 (2010). In this case, Defendant's career offender status makes him ineligible for a sentence reduction under § 3582(c)(2).
Therefore, since Defendant was originally sentenced based on the career offender guideline range which has not been amended, this Court lacks jurisdiction under § 3582(c)(2) to modify his sentence. As such, the Court DENIES Defendant's motion for sentence reduction.
The Court also notes that the United States Supreme Court recently decided in Dillon v. United States, 130 S. Ct. 2683 (2010), that United States v. Booker, 543 U.S. 220 (2005), does not apply to § 3582(c)(2) proceedings, further supporting the Court's decision to deny Defendant's motion for sentence reduction.