Opinion
Case No. 2:01-cr-94-2.
February 4, 2008
ORDER
The court has received a letter from the defendant requesting the appointment of counsel to assist her in obtaining a two-level reduction under the new amendments to the United States Sentencing Guidelines ("U.S.S.G.") applicable to cocaine base offenses. These amendments will be retroactive effective March 3, 2008. The letter has been filed on the docket as a motion.
Defendant was sentenced on January 25, 2002, following her guilty plea to Count I of the indictment, conspiracy to distribute and to possess with intent to distribute over fifty grams of cocaine base in violation of 21 U.S.C. § 846. That offense carries a mandatory minimum term of incarceration of ten years (120 months). See 21 U.S.C. § 846 and § 841(b)(1)(A)(iii). The base offense level in defendant's case was a level 32, based on relevant conduct in the amount of 123.5 grams of cocaine base. U.S.S.G. (2001 Edition), § 2D1.1(c)(4). Her sentence was calculated based on a total offense level of 31, Criminal History Category I, which produced a sentencing range of 120 to 135 months. Defendant was sentenced to the mandatory minimum sentence of 120 months incarceration.
Under the amended Guidelines, relevant conduct within the range of 50 to 150 grams of cocaine base would be assigned a base offense level of 30. U.S.S.G. § 2D1.1(c)(5). Defendant's new total offense level would be a total offense level of 29. Ordinarily, that total offense level, with a Criminal History Category I, would carry a sentencing range of 87 to 108 months. However, defendant is not entitled to a reduction of her sentence of 120 months, which is the mandatory minimum sentence required for an offense involving over fifty grams of cocaine base. See U.S.S.G. 1B1.10(a)(2)(B) and Application Note 1(a) (a reduction is not consistent with this policy statement and is not authorized under 18 U.S.C. § 3582(c)(2) if the amendment does not have the effect of lowering defendant's applicable guideline range, as in cases where the statutory mandatory minimum term of imprisonment controls).
Since a reduction in defendant's sentence based on the amendments to the cocaine base guidelines is not permitted due to the statutory mandatory minimum sentence required by law, defendant's motion for appointment of counsel and for a reduction of her sentence is denied.