Opinion
Case No. 03-CR-194.
March 17, 2008
DECISION AND ORDER
On October 4, 2005, I sentenced defendant Terronce Gardner to 84 months imprisonment following his guilty plea to conspiracy to distribute 500 grams or more of cocaine. Defendant has now filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on the Sentencing Commission's November 1, 2007 amendment to U.S.S.G. § 4A1.2. Defendant argues that under this amendment his criminal history score would be 1 point lower, making his category IV rather than V.
Eligibility for a reduction under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment designated for retroactive application by the Commission in U.S.S.G. § 1B1.10(c). U.S.S.G. § 1B1.10 cmt. n. 1(A); see also United States v. Perez, 249 F.3d 583, 584 (7th Cir. 2001) ("Amendments apply only to sentences pronounced after the changes go into force, unless the Commission makes them retroactive."). Amendment 709 — the November 1, 2007 revision to the criminal history guidelines — is not listed in § 1B1.10(c). Accordingly, defendant may not invoke that amendment to obtain a sentence reduction under 18 U.S.C. § 3582(c)(2). THEREFORE, IT IS ORDERED that defendant's motion for reduction of sentence (R. 729) is DENIED.
Even if Amendment 709 applied retroactively, it does not appear that defendant qualifies for any relief thereunder. Amended § 4A1.2 does not exclude all misdemeanor convictions from the criminal history score, as defendant seems to believe. Rather, it excludes only the misdemeanor and petty offenses enumerated in § 4A1.2(c). The offense defendant seems to refer to in his motion — a cocaine possession conviction for which he received a sentence of 10 days in jail — would score under the new guideline just as it did when defendant was sentenced.