Opinion
No. CR01-2003-LRR.
May 8, 2008
ORDER
This matter is before the court pursuant to the defendant's motion to reduce sentence under 18 U.S.C. § 3582(c)(2) (docket no. 176) and motion to waive appearance and for the court to decide the motion to reduce sentence on the written submissions of the parties (docket no. 177). The defendant filed both motions on April 28, 2008. In relevant part, 18 U.S.C. § 3582(c) provides:
At the court's request, the United States Probation Office prepared a memorandum that, among other things, addresses the defendant's eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2).
The court may not modify a term of imprisonment once it has been imposed except that . . . in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2); see also United States v. Auman, 8 F.3d 1268, 1271 (8th Cir. 1993) ("Section 3582(c)(2) is a provision that permits a district court to reduce a term of imprisonment if the sentencing range upon which the term was based is subsequently lowered by the Sentencing Commission.").
On November 1, 2007, the Sentencing Commission issued Amendment 706, as amended by Amendment 711, to USSG § 2D1.1. See generally USSG App. C at www.ussc.gov. Amendment 706 generally reduces by two levels the offense level that is applicable to cocaine base ("crack") offenses. On December 11, 2007, the Sentencing Commission voted to apply Amendment 706 retroactively to crack offenses, and it set March 3, 2008 as the date that Amendment 706 could be applied retroactively. The Sentencing Commission also promulgated amendments to USSG § 1B1.10, which sets forth the conditions that must exist before a defendant is entitled to a sentence reduction as a result of an amended guideline range. See generally USSG App. C at www.ussc.gov. New USSG § 1B1.10 took effect on March 3, 2008 and, in relevant part, states:
In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
USSG § 1B1.10(a)(1); see also USSG § 1B1.10, comment. (n. 1) ("Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range."). The Sentencing Commission included Amendment 706 within subsection (c). USSG § 1B1.10(c).
Nevertheless, the court is unable to rely on Amendment 706 to reduce the defendant's sentence. See generally United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir. 1997) (explaining requirements under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10). Because the sentence was based on a quantity of crack that exceeded 4.5 kilograms (26,769.48 grams), the defendant's guideline range remains the same, see USSG § 2D1.1, and the defendant is not entitled to a reduction of his 108 month term of imprisonment. Accordingly, the court concludes that a reduction under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 is not warranted. Cf. United States v. Wanton, 2008 U.S. App. LEXIS 9717 (8th Cir. 2008) (concluding Amendment 706 does not apply where more than 4.5 kilograms of crack is involved, and, consequently, defendant could not rely on 18 U.S.C. § 3582(c)(2) to reduce his sentence). The defendant's motion to reduce sentence under 18 U.S.C. § 3582(c)(2) (docket no. 176) and motion to waive appearance and for the court to decide the motion to reduce sentence on the written submissions of the parties (docket no. 177) are denied.
Based on a total adjusted offense level of 36 and a criminal history category of IV, the court previously determined the defendant's guideline range to be 262 to 327 months imprisonment. After granting the government's motion to depart under USSG § 5K1.1, the court sentenced the defendant to 144 months imprisonment. Subsequently, the court relied on Federal Rule of Criminal Procedure 35(b) and 18 U.S.C. § 3553(e) to reduce the defendant's sentence to 108 months imprisonment.
The Clerk of Court is directed to send a copy of this order to the United States, the defendant and the Federal Public Defender.
IT IS SO ORDERED.