The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Donniel Spurlock, has filed a pro se motion for reduction of his sentence under 18 U.S.C. § 3582(c) pursuant to Amendment 706 to the sentencing guidelines, which generally reduces the base offense level for crack cocaine offenses by two levels. The Federal Public Defender was later appointed to represent Defendant and has filed a sentencing memorandum on his behalf.
The government opposes the motion on the following grounds. First, Defendant does not qualify for a reduction because his sentence was established in part by his status as a career offender. Second, in any event, we should not exercise our discretion under section 3582(c)(2) to reduce Defendant's sentence given his criminal history and the drug quantity involved in his offense. Third, the amendment could not have been intended to apply to a "large-scale" career offender whose offense level (because of the large quantities involved) was determined by drug quantity rather than career offender status when another career offender cannot benefit from the amendment because his offense level was determined by his career offender status. Fourth, regardless of the amendment's intent, we should exercise our discretion to avoid this unfair disparity between a large-scale and small-scale career offender by denying a sentence reduction for Defendant.
In October 2002, Defendant and others were named in an eight-count superseding indictment. He was charged with conspiracy to distribute or possess with the intent to distribute crack cocaine in violation of 21 U.S.C. § 846, and with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841.
On January 14, 2003, Defendant executed a written plea agreement in which he agreed to plead guilty to a superseding information charging him with distribution and possession with the intent to distribute an unspecified quantity of crack cocaine. This offense has a statutory maximum sentence of twenty years. 21 U.S.C. § 841(b)(1)(C). In turn, the government agreed to recommend a three-level reduction in his offense level for acceptance of responsibility if warranted and to file a motion for downward departure under U.S.S.G. § 5K1.1 if it believed Defendant had provided substantial assistance. On January 23, 2003, Defendant pled guilty.
A presentence report (PSR) was prepared, with a calculation of Defendant's guideline range using the guidelines in effect on August 29, 2003. At that time, section 2D1.1 provided a base offense level of 38 for crack-cocaine offenses involving at least 1.5 kilograms.*fn1 In paragraph 30 of the PSR, the probation office concluded that Defendant "was conservatively involved with more than one and one-half kilograms of crack cocaine." In paragraph 35 of the PSR, which set forth Defendant's base offense level of 38, the probation office concluded that Defendant's drug quantity "far exceeded" one and one-half kilograms, based principally on factual assertions of two named witnesses. One witness stated he had seen two kilograms of powder cocaine being cooked into crack cocaine at Defendant's house. Another witness talked about supplying Defendant with five to six ounces of powder or crack cocaine per week beginning in the summer of 1998 and continuing through August 2002. Other witnesses, left unnamed, were also mentioned as having information relevant to Defendant's drug quantity. (PSR ¶ 35). Three points were subtracted from this level for acceptance of responsibility under U.S.S.G. § 3E1.1(b)(1) and (2), resulting in a total offense level of 35. (PSR ¶ 32).
The PSR acknowledged that Defendant was a career offender because he had committed the offense while having at least two adult felony convictions for controlled substance offenses and crimes of violence. The report noted that under U.S.S.G. § 4B1.1, the career offender guideline, the twenty-year maximum sentence normally called for a total offense level of 32. However, because Defendant's total offense level was otherwise calculated as 35, the greater number prevailed and he was assigned a total offense level of 35. See U.S.S.G. § 4B1.1(b)(providing that the offense level for a career offender was that from section 4B1.1 only if "the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable").
Under section 4B1.1(b), as a career offender, Defendant was assigned a criminal history category of VI. (PSR ¶ 51).*fn2 This made Defendant's guideline range 292 to 365 months, but because the statutory maximum sentence was 240 months, under U.S.S.G. § 5G1.1(a) Defendant's guideline range became the statutory maximum.
The government moved for a downward departure under section 5K1.1 based on Defendant's substantial assistance, specifically recommending a thirty percent departure to 168 months. At sentencing on September 18, 2003, this motion was granted, and Defendant was sentenced to 168 months' imprisonment. Defendant had submitted objections to the PSR, one of which contested his role in the offense by arguing against certain drug quantities attributed to him. The objections were withdrawn after the court indicated it was going to grant the downward-departure motion. (Doc. 349, minute sheet for sentencing; sentencing transcript at p. 2). The court made no finding of a specific drug quantity.
In January 2004, the government filed a motion for reduction of sentence under Fed. R. Crim. P. 35(b). In that motion, the government requested that Defendant receive an additional twenty percent reduction of sentence in recognition of his substantial assistance. On January 22, 2004, this motion was granted, and Defendant's sentence was reduced an additional twenty percent to 134 months' imprisonment.
In September 2004, the government filed a second motion under Rule 35(b) for reduction of sentence. In that motion, the government requested an additional ten percent reduction, again in recognition of Defendant's substantial assistance. This motion was granted on September 27, 2004, and Defendant's sentence was reduced by ten percent to 123 months' incarceration.
On December 17, 2007, Defendant filed his pro se motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 706 to the sentencing guidelines. Amendment 706 modified U.S.S.G. § 2D1.1, generally decreasing "by two levels the base offense levels for crack cocaine offenses." United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008). The motion also argued that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 ...