Opinion
Case No. 2:07-cr-148-FTM-29DNF.
September 2, 2011
OPINION AND ORDER
This matter is before the Court on Petitioner's Request For Reconsideration For Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. #54), filed on August 29, 2011. Defendant seeks reconsideration of the Opinion and Order (Doc. #52) filed on August 2, 2011, denying his request for a reduction in his sentence in light of Amendments 706 and 713 to the United States Sentencing Guidelines. The Court found that because defendant was sentenced as a career offender he was not eligible for a reduction of his term of imprisonment under Amendment 706. Defendant argues that he was not treated as a career offender because the Court granted a departure under § 4A1.3 and a downward variance. Because defendant is incorrect, the motion for reconsideration will be denied.
At defendant's original sentencing, the Court determined that defendant's Total Offense Level was 32 because defendant qualified as a career offender under U.S.S.G. § 4B1.1. The Court granted a three level adjustment because of acceptance of responsibility, resulting in an Enhanced Offense Level of 29. Defendant's Criminal History Category was VI, and the resulting Sentencing Guidelines range was 151 to 188 months imprisonment. The Court granted a departure pursuant to Sentencing Guidelines § 4A1.3, reducing the criminal history category from VI to V, and a United States v. Booker, 543 U.S. 220 (2005) variance. Defendant was sentenced to 120 months imprisonment.
Contrary to defendant's assertion, he was sentenced as a career offender, and is not eligible for a reduction pursuant Amendments 706 and 713 despite the departure under § 4A1.3 and the Booker variance. United States v. Moore, 541 F.3d 1323 (11th Cir. 2008);United States v. Mills, 613 F.3d 1070 (11th Cir. 2010); United States v. Daniels, 345 F. App'x 527 (11th Cir. 2009); United States v. Wilson, 344 F. App'x 559 (11th Cir. 2009); United States v. Gil, 329 F. App'x 212 (11th Cir. 2009).
Accordingly, it is now
ORDERED AND ADJUDGED:
Defendant's Request For Reconsideration For Modification of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. #54) is DENIED. DONE AND ORDERED at Fort Myers, Florida.