Opinion
No. 02-40002-01-SAC
March 5, 2003
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion to vacate and/or modify sentence. (Dk. 34). Though titled as if a motion under 28 U.S.C. § 2255, the defendant asserts only one ground for relief, that is, the retroactive application of an amendment to the Sentencing Guidelines effective November 1, 2002, that he argues would limit the base offense level in his case to thirty. The court construes the defendant's motion as brought under 18 U.S.C. § 3582(c)(2) in that he argues the Sentencing Commission has subsequently lowered the sentencing range that was used in sentencing him.
The defendant pleaded guilty to a single count indictment charging possession with intent to distribute approximately 216.93 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). The Presentence Report ("PSR") found a base offense level of 34, less two levels for a safety valve adjustment, and less another three levels for acceptance of responsibility. With a total offense level of 29 and a criminal history category of one, the applicable guideline sentencing range was 87 to 108 months. On September 5, 2002, the court sentenced the defendant to 70 months after granting the government's § 5K1.1 motion to reduce the sentence for substantial assistance.
The defendant argues: "On November 1, 2002 the Federal Sentencing Commission passed a law, Amendment 4, which limits the above offense to a Offense Level of 30." (Dk. 34, ¶ 6). As the government points out, there was no amendment "4" effective November 1, 2002, but there was an amendment 640 which added to § 2D1.1(a)(3) the following language, "except that if the defendant receives an adjustment under § 3B1.2 (Mitigating Role), the base offense level under this subsection shall be not more than level 30." Thus, this amendment establishes a maximum base offense level of 30 for a defendant who has received a mitigating role adjustment.
Under U.S.S.G. § 1B1.10, certain listed amendments to the guidelines are to be given retroactive effect, and a defendant may seek a reduction in his sentence because of a retroactive amendment under § 3582(c). The Tenth Circuit court has concluded that if an amendment to the Guidelines is not listed in subsection (c) of U.S.S.G. § 1B1.10, then the amendment may not serve as a basis for reducing a defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993) ("The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction of sentence based on the amendment would not be consistent with the policy statement."); see also United States v. Torres, 99 F.3d 360, 362-63 (10th Cir. 1996) (affirmed denial of a § 3582(c)(2) motion for reduction of sentence because the amendment was not listed as having retroactive effect in U.S.S.G. § 1B1.10(c)), cert. denied, 520 U.S. 1129 (1997). Amendment 640 is not listed in U.S.S.G. § 1B1.10(c).
"[E]ven if an amendment is not listed in USSG § 1B1.10, sentencing and reviewing courts may still give retroactive effect to amendments that are `clarifying (as opposed to substantive).'" United States v. Kissick, 69 F.3d 1048, 1052 (10th Cir. 1995) (quoting United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995)). Amendment 640 altered the relevant text of § 2D1.1(a)(3) by setting an entirely new maximum base offense level for those defendant who receive a mitigating role adjustment. As the Sentencing Commission explained, this "amendment responds to concerns that base offense levels derived the Drug Quantity Table in § 2D1.1 overstate the culpability of certain drug offenders who meet the criteria for a mitigating role adjustment under § 3B1.2." Accordingly, amendment 640 is substantive and not appropriate for retroactive effect.
Even if this amendment were retroactively applied, its terms would not change the defendant's sentence. The maximum offense level of 30 is for those defendants who receive a mitigating role adjustment. The defendant did not receive such an adjustment, and the PSR did not recommend any such adjustment.
IT IS THEREFORE ORDERED that the defendant's motion to vacate and/or modify sentence (Dk. 34) is denied.