The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court is a motion filed by Defendant pursuant to
28 U.S.C. § 2255. The motion appears to allege that Defendant should
have received a greater reduction in his sentence for substantial
assistance that he provided to the Government, as well as an
allegation that he should not have been designated as a career
offender. He claims that a 1981 conviction for burglary should
not have been counted in arriving at a career offender
Petitioner pled guilty on February 4, 2002 to a count of
distribution and possession with intent to distribute cocaine
base. The amount of the drugs was at least 20 grams but less than
35 grams. This computed to a base offense level of 28. A three
level reduction for acceptance of responsibility resulted in an
offense level of 25. However, pursuant to USSG § 4B1.1 a career
offender designation his offense level became 32 with a
criminal history category of VI. With a three level reduction for
acceptance of responsibility, Defendant's offense level became
29. His guideline range then became 151 to 188 months. Without the career
offender determination, Defendant's offense level would have been
level 25 with a criminal history of IV and a guideline range of
84 to 105 months.
Prior to sentencing, pursuant to a plea agreement, the
Government filed a motion for departure pursuant to USSG § 5K1.1.
No objections were filed to the presentence report. At
sentencing, however, defense counsel did argue that the career
offender designation overstated the seriousness of Defendant's
criminal history. The court sentenced Defendant to a term of
imprisonment of 96 months, which was within the range of the
downward departure motion filed by the Government. No direct
appeal was taken.
Defendant does not argue that this court did not understand
that it had the discretion to depart below what the Government
recommended for a reduction in his guideline offense level
pursuant to § 5K1.1. He does not allege incompetency of counsel.
Defendant appears to want a resentencing pursuant to United
States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). However,
pursuant to Lloyd v. United States, 407 F.3d 608 (3d Cir.
2005), Booker does not apply retroactively to prisoners who
seek such relief by way of collateral review such as a § 2255
Petitioner argues that his February 23, 1981 sentence for bank
robbery should not have been assigned criminal history points
because of its age and the "15-year window." Defendant was
sentenced on February 23, 1981 for the bank robbery; his sentence
was reduced on February 24, 1982; and he was paroled on March 28, 1984. However, his parole was revoked on July 1, 1988 and he was
reparoled on January 12, 1990.
USSG § 4A1.2(e)(1) [applicable time period] speaks to the
counting of any prior sentence that results in a defendant being
incarcerated during the 15-year period in this case,
Defendant's parole violation sentence. USSG § 4A1.2(k)(1) & (2)
addresses parole revocations. At (k)(2)(B), the guidelines note
that revocation of parole may affect the time period under which
sentences are counted pursuant to 4A1.2(e). That section also
states that the applicable time period is calculated from the
date of the last release from incarceration on a sentence.
The important date that controls in the instant case is the
parole date of January 12, 1990. Thus, the 15-year window is well
within Defendant's recent offenses which occurred between June
2002 and March 2003. Therefore, the February 1981 sentence for
robbery was accurately considered in the designation of Defendant
as a career criminal.
For the foregoing reasons, the motion will be denied. ORDER
In accordance with the accompanying memorandum, IT IS HEREBY
1) Defendant's motion filed pursuant to
28 U.S.C. § 2255 is DENIED.
2) This court declines to issue a certificate of
3) the ...