Consequently, neither Amendment 782 nor 18 U.S.C. § 3582(c)(2) apply to Miller who was sentenced directly under the career offender guidelines. See id. at 531-34; see also United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009) ("[Amendment] only affects calculation under § 2D1.1(c), and the lowering of the base offense level under § 2D1.1(c) has no effect on the application of the career offender offense level by § 4B1.1"); United States v. Thompson, 290 F. App'x 519, 520 (3d Cir. 2008) (holding that the defendant, who was sentenced as a career offender under § 4B1.1, was "not eligible for a sentence reduction as a result of the amendments to § 2D1.1" because "[t]he amendment to § 2D1.1 played no role in determining the recommended guideline range for his sentence"). Consequently, Miller's request for relief pursuant to 18 U.S.C. § 3582(c)(2) is denied.
Id.See also, United States v. Nabried, 310 Fed. Appx. 529 (3d Cir. 2009) (holding defendant was not entitled to a sentence reduction under Amendment 706 because he was sentenced according to § 4B1.1 of the Guidelines, rather than the crack provisions in § 2D1.1, and his sentence was not affected by Amendment 706); United States v. Thompson, 290 F. App'x 519, 520 (3d Cir. 2008) (finding that the defendant, sentenced as a career offender under § 4B1.1, was ineligible for a sentence reduction because his guideline range remained unchanged by Amendment 706, and § 2D1.1 played no role in determining his recommended guideline range). Other circuits have also refused to grant sentence reductions under Amendment 706 when a defendant's sentence was "based on" his status as a career offender.
All six have rejected defendant's argument, including the Fourth Circuit in seven unpublished opinions. See, e.g., United States v. Thompson, No. 08-7037, 2009 WL 1144036, at *1 (4th Cir. Apr. 29, 2009) (per curiam) (unpublished); United States v. Plater, No. 08-7135, 2009 WL 1069316, at *1 (4th Cir. Apr. 22, 2009) (per curiam) (unpublished); United States v. White, 304 Fed. Appx. 222 (4th Cir. 2008) (per curiam) (unpublished); United States v. Caraballo, 552 F.3d 6, 9-10 (1st Cir. 2008);United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008); Johnson, 292 Fed. Appx. at 353; United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008); United States v. Thompson, 290 Fed. Appx. 519, 520 (3d Cir. 2008) (per curiam) (unpublished); United States v. Wright, 289 Fed. Appx. 610, 611 (4th Cir. 2008) (per curiam) (unpublished); United States v. Dawson, 286 Fed. Appx. 40 (4th Cir. 2008) (per curiam) (unpublished); United States v. Thomas, 524 F.3d 889, 889-90 (8th Cir. 2008) (per curiam); United States v. Gray, 271 Fed. Appx. 304, 306 n. 1 (4th Cir. 2008) (per curiam) (unpublished); United States v. Bronson, 267 Fed. Appx. 272, 274-75 (4th Cir. 2008) (per curiam) (unpublished). Indeed, this court has not located any case that, on similar facts, has accepted defendant's argument. Instead, courts have uniformly denied materially indistinguishable motions.
Id.See also United States v. Nabried, No. 08-2480, 2009 WL 325761, at *2 (3d Cir. Feb. 11, 2009) (holding defendant was not entitled to a sentence reduction under Amendment 706 because he was sentenced according to § 4B1.1 of the Guidelines, rather than the crack provisions in § 2D1.1, and his sentence was not affected by Amendment 706); United States v. Thompson, 290 F. App'x 519, 520 (3d Cir. 2008) (finding that the defendant, sentenced as a career offender under § 4B1.1, was ineligible for a sentence reduction because his guideline range remained unchanged by Amendment 706, and § 2D1.1 played no role in determining his recommended guideline range). Other circuits have also refused to grant sentence reductions under Amendment 706 when a defendant's sentence was "based on" his status as a career offender.
Many courts in this district have reached the same conclusion as this Court. See United States v. Thompson, 290 Fed. Appx. 519, 520 (3d Cir. 2008); see also United States v. McDowell, 2008 WL 5264878 at *2 (E.D. Pa. December 17, 2008);United States v. Taylor, 2008 WL 4899460 at *3 (E.D. Pa. November 10, 2008); United States v. Robinson, 2008 WL 4792071 at *2 (E.D. Pa. October 30, 2008); United States v. Squire, 2008 WL 4694915 at *3 (E.D. Pa. October 23, 2008); United States v. Roman, 2008 WL 2669769 at *2 (E.D. Pa. July 7, 2008).See Rivera, 535 F.Supp.2d at 529-30; see also United States v. Ayala-Pizarro, ___ F.3d ___, 2008 WL 5338459 at *2 (1st Cir. December 23, 2008) (holding that unless an amended guideline lowered the sentencing range actually used at sentencing, the defendant's sentence was not based on that range within the intendment of § 3582); United States v. Caraballo, ___ F.3d ___, 2008 WL 5274853 at *4 (1st Cir. December 22, 2008) (same); United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008).
Defendant's argument is unavailing. "Recent decisions in our circuit have been uniform in holding that where a court sentencing a career offender departs downward from the Guidelines range, the defendant's sentence remains `based on' his status as a career offender for purposes of § 3582(c)(2)." United States v. Jonathan Jackson, No. 03-281-1, 2008 WL 5412825, at *1 (E.D. Pa. Dec. 29, 2008) (Bartle, C.J.) (citing United States v. Squire, No. 97-461, 2008 WL 4694915, at *3 (E.D. Pa. Oct. 23, 2008);United States v. Boyd, No. 01-29, 2008 WL 2537139, at *2 (W.D. Pa. June 24, 2008); United States v. Thompson, 290 F. Appx. 519, 520 (3d Cir. 2008) (non-precedential)); see also United States v. McDowell, No. 06-376, 2008 WL 5264878, at *2 n. 1 (E.D. Pa. Dec. 17, 2008); United States v. Wright, No. 04-100, 2008 WL 4722508, at *4 (M.D. Pa. Oct. 23, 2008). As noted inUnited States v. Jonathan Jackson, "[t]he only exception to this rule has been where the trial court departed downward upon a finding that the enhanced criminal history category associated with the career offender designation substantially over-represents the defendant's criminal history."
Absent such a factual premise, § 3582(c)(2) does not come into play. Significantly, every court to have considered the issue in the context of a defendant like Mr. Wright, whose advisory guideline range was governed by the career offender provisions set forth in U.S.S.G. § 4B1.1, has rejected the premise presented by Mr. Wright. See, e.g., United States v. Thompson, No. 08-2485, 2008 WL 3974337, at *2 (3d Cir. Aug. 28, 2008) (non-precedential) ("[b]ecause Thompson was a career offender . . . [t]he [crack cocaine] amendment to § 2D1.1 played no role in determining the recommended guideline range for his sentence," precluding Thompson from being eligible for a sentence reduction); United States v. Johnson, No. 08-50403 2008 WL 4189662 (5th Cir. Sept. 11, 2008) (non-precedential); United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008) ("the district courts properly determined that they lacked authority under § 3582(c)(2) to grant the requested sentence reductions . . . [because] although Amendment 706 would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under § 4B1.1"); United States v. Thomas, 524 F.3d 889, 890 (8th Cir. 2008) (per curiam); United States v. Olden, No. 08-5060, 2008 WL 4596336 (10th Cir. Oct. 15, 2008);United States v. Strothers, Criminal No. 03-195, 2008 WL 2473686 (W.D. Pa. June