Opinion
Case No. 8:05-CR-267-T-27TBM.
March 19, 2008
ORDER
THIS CAUSE IS before the court sua sponte, it initially appearing that U.S.S.G. Amendment 706, which retroactively lowers the base offense level for cocaine base offenses by two levels for eligible defendants sentenced on or after November 1, 2007, may apply to Defendant. Upon consideration, the Court finds and concludes that Amendment 706 does not reduce Defendant's sentencing range and therefore Defendant is not entitled to a sentence reduction.
Defendant pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of cocaine base (Dkt. 32). His sentencing guideline range was 97 to 121 months, based on an offense level of 29 and a criminal history category II. However, Defendant was subject to a statutory minimum mandatory term of 120 months because of the quantity of cocaine base involved. Accordingly, 120 months became the low end of his guideline range. U.S.S.G. § 5G1.1(c)(2). Pursuant to the Government's U.S.S.G. § 5K1.1 motion, based on substantial assistance, the Court departed downward 12 levels, resulting in a guideline range of 27 to 33 months. Defendant was sentenced to 27 months imprisonment (Dkt. 36).
Pursuant to 18 U.S.C. § 3582(c)(2), a sentence may be adjusted where a defendant's sentencing guideline range is subsequently lowered as a result of an amendment to the Guidelines Manual. U.S.S.G. § 1B1.10(a)(1). For eligible defendants convicted of cocaine base offenses, Amendment 706 has the effect of lowering the base offense level by two levels. The procedure for implementing the amendment is established in § 1B1.10(b), which instructs that the district court "shall" determine the "amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time of sentencing." The first step, therefore, in determining Defendant's eligibility for the two level adjustment is to determine what effect Amendment 706 would have on Defendant's sentencing guideline range, if it had been in effect at the time of his sentencing.
Defendant's original base offense level was 32. After a three level adjustment for acceptance of responsibility, his adjusted offense level became 29. Applying Amendment 706's two level adjustment to Defendant's original base offense level results in a base offense level of 30 and an adjusted offense level of 27. With a criminal history category II, Defendant's amended guideline range would be 78 to 97 months. However, Defendant is subject to a statutory minimum mandatory term of 120 months. Accordingly, his amended guideline range is 120 months. U.S.S.G. § 5G1.1(b). That sentencing guideline range falls within offense level 29, the same offense level applicable to Defendant at the time of sentencing.
As Defendant is subject to a statutory minimum mandatory term of 120 months, Amendment 706, even if it had been in effect the time of Defendant's sentencing, would not have lowered the applicable sentencing guideline range. Accordingly, § 3582(c) does not authorize a reduction in his sentence. "A reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. § 3582(c) if . . . an amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of . . . another statutory provision (e.g., a statutory mandatory minimum term of imprisonment." U.S.S.G. § 1B1.10, comment. (n. 1(A)); see United States v. Eggersdorf, 126 F.3d 1318, 1321 (11th Cir. 1997), cert. denied, 523 U.S. 1013 (1998); United States v. Dimeo, 28 F.3d 240 (1st Cir. 1994); United States v. Williams, 103 F.3d 57 (8th Cir. 1996); United States v. Johnson, ___ F.3d ___, 2008 WL 516518 (8th Cir. 2008); United States v. Goodman, 2008 WL 616100 (M.D. Fla. 2008).
Any § 5K1.1 downward departure pursuant to the Government's motion based on substantial assistance is applied after a determination of Defendant's guideline range pursuant to § 5G1.1(b), consistent with the order in which the guideline provisions are set forth in the Guidelines Manual. U.S.S.G. § 1B1.1; United States v. Head, 178 F.3d 1205, 1208 (11th Cir. 1999), cert. denied, 528 U.S. 1094 (2000). The starting point for any § 5K1.1 departure based on the Government's motion is therefore the statutory minimum mandatory term of 120 months. Id. Applying a comparable 12 level downward departure pursuant to § 5K1.1 results in a guideline range of 27 to 33 months, the same guideline range applicable at the time of sentencing.
DONE AND ORDERED in chambers.