The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Ronald Boatwright, has filed a motion for reduction of his sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 706 to the sentencing guidelines, which generally reduces the base offense level for crack cocaine offenses by two levels. He has also filed a supplemental motion under section 3582(c)(2) relying on his positive post-sentencing conduct while in prison.
The government opposes a reduction on the following grounds. First, Defendant is not eligible for one because his sentence was not based on the guidelines but was instead an indeterminate one. Second, Defendant's guideline range recalculated under Amendment 706 is still higher than the sentence he did receive. Third, we should not exercise our discretion under section 3582(c)(2) to reduce Defendant's sentence since, anticipating United States v. Booker, 543 U.S. 229, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we did give Defendant a sentence that treated the guidelines as advisory only, and in these circumstances, the policy statement governing reductions under Amendment 706 advises that a reduction would not generally be appropriate.
We need not address the first two arguments. We agree with the government that no reduction is proper here because in sentencing Defendant we essentially took into account the unfairness of the crack-cocaine disparity intended to be cured by Amendment 706. Thus, no further reduction in sentence is appropriate.
In December 2003, Defendant was named in a four-count indictment. On April 21, 2004, pursuant to a written plea agreement, he pled guilty to counts I and III. Count I charged him with possession with the intent to distribute an unspecified quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and Count III with unlawfully possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c).
A presentence report (PSR) was prepared, setting forth a calculation of Defendant's guideline range using the guidelines in effect at the time of sentencing. Defendant's base offense level for the drug offense was 22, representing 333.42 grams of marijuana and 3.8 grams of crack cocaine converted to a marijuana quantity for sentencing purposes. A three-level reduction was granted for acceptance of responsibility, giving Defendant a total offense level of 19. Combined with a criminal history category of IV, the guideline range was 46 to 57 months. On the firearm offense, the guideline range was the statutorily mandated five-year term of imprisonment that had to be imposed by law consecutively to the drug count. See 18 U.S.C. § 924(c)(1)(A)(i).
At sentencing on July 28, 2004, the court anticipated that the holding of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), would be extended to the federal sentencing guidelines, and decided to use the guidelines in an advisory capacity only.*fn1 (Transcript of sentencing, attached to Defendant's motion, pp. 7 and 20). In light of the mandatory sixty-month consecutive sentence that had to be imposed for the firearm offense, we "use[d] the guidelines as a measure" but "var[ied] somewhat," (id.), and imposed a non-guideline sentence of twenty-four months on the drug offense, which meant a total period of incarceration of eighty-four months. We also noted that if we were required to apply the guidelines, we would have imposed a sentence of forty-six months (the low end of the range) on the drug offense and sixty months on the firearm offense for a total of 106 months.
The probation office has submitted an addendum to the PSR, with Defendant's guideline range for the drug offense recalculated using Amendment 706. As recalculated, Defendant's base offense level becomes twenty and his total offense level 17. With a criminal history category of IV, the recalculated guideline range is 37 to 46 months.
The United States Sentencing Commission has authority to amend the guidelines, 28 U.S.C. § 994(o), and to provide that any amendment has retroactive effect. Id., § 994(u). Under 18 U.S.C. § 3582(c)(2), a defendant can seek the benefit of an amendment by a motion to modify his sentence. Any sentence reduction must take into account "the factors set forth in 18 U.S.C. § 3553(a) to the extent that they are applicable" and "must be consistent with applicable policy statements issued by the Sentencing Commission." Id.
U.S.S.G. § 1B1.10 (Policy Statement)(effective March 3, 2008) is the applicable policy statement. In pertinent part, it provides that under section 3582(c)(2) a court "may reduce the defendant's term of imprisonment" "when 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." Id., § 1B1.10(a)(1). Amendment 706 is listed in subsection (c). However, "[a] reduction is not consistent with [the] policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." Id., § 1B1.10(a)(2)(B).
In determining the effect of the amendment on the defendant's sentence, and essentially to determine whether it lowers his applicable guideline range, the 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 the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline ...