The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Tommy Lee Clayborn, has filed a motion for a reduction of sentence under 18 U.S.C. § 3582(c) based on Amendment 706 to the sentencing guidelines. (docs. 235, 237). The Government opposes the motion, arguing that the amendment does not apply to Clayborn because the sentence imposed was one agreed to under Federal Rule of Criminal Procedure 11(c)(1)(C) and because the amendment does not have the required effect of lowering Clayborn's applicable guidelines range. The addendum to the Pre-Sentence Report opines that because Clayborn entered into a binding plea agreement, he is not entitled to a reduction.
We will deny the motion for the same reasons supporting our denial of the section 3582(c) motion filed by Kim Clayborn, Tommy Lee Clayborn's co-defendant.
On June 30, 2005, Clayborn pleaded guilty to conspiracy to distribute and possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 846. Clayborn entered into a binding plea agreement pursuant to Rule 11(c)(1)(C).*fn1 After determining that Clayborn was accountable for at least five hundred grams of crack cocaine, his base offense level was 36. With a three-level reduction for acceptance of responsibility and a Criminal History category of VI, his guidelines range was 235-293 months' imprisonment, limited by the 240-month agreed upon statutory maximum. On January 18, 2006, Clayborn was sentenced to 240 months pursuant to the terms of the binding plea agreement.*fn2
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). Amendment 706, which generally reduces the base offense level for crack cocaine offenses by two levels, has retroactive effect. See U.S.S.G. § 1B1.10(a)(1) and (c) (Policy Statement) (effective March 3, 2008). Under 18 U.S.C. § 3582(c)(2), a defendant can seek the benefit of an amendment by a motion to modify his sentence. In pertinent part, section 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment . . . .
As we concluded in denying an identical motion filed by Kim Clayborn, Amendment 706 does not apply because Tommy Lee Clayborn's sentence was one agreed to under Rule 11(c)(1)(C). Section 3582(c)(2) applies only to a defendant who has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission" (emphasis added), not on a sentence the parties agreed to under Rule 11(c)(1)(C). See United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996) (an agreed-upon sentence is not subject to reduction pursuant to § 3582(c)(2) because it was not based on a sentencing range subsequently lowered by the Sentencing Commission); United States v. Gordon, No. 97-24, 2008 WL 901911, at *1 (E.D. Okla. Mar. 31, 2008) (defendant cannot rely on section 3582(c)(2) for a sentence reduction under Amendment 706 when his sentence was agreed upon under Rule 11(c)(1)(C)).
Clayborn makes a number of arguments in favor of applying the amendment despite the binding sentence. We are unpersuaded by the arguments and will address them in order.
First, Clayborn argues that unlike Kim Clayborn's section 3582 motion, his guidelines range would be reduced by Amendment 706. (doc. 248, p. 7). But as explained supra, the amendment's effect on the guideline range does not overcome the statutory language which does not allow a sentence reduction for a sentence based on Clayborn's type of plea agreement. Additionally, our denial of Kim Clayborn's motion did not rest on whether the application of Amendment 706 would reduce the guidelines range. Instead, we concluded that Kim Clayborn, who was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement, was not eligible for relief under section 3582. United States v.
Kim Clayborn, No. 05-51-2, at doc. 243 (M.D. Pa. Apr. 14, 2008). Therefore, the effect of Amendment 706 on the guidelines range is not a meaningful distinction between Kim Clayborn and Tommy Lee Clayborn.
Second, Clayborn contends that he may pursue a section 3582 motion because he did not waive his rights to appeal or to seek collateral relief. (doc. 248, pp. 7-8). While Clayborn is correct, this does not change our conclusion regarding the inapplicability of Amendment 706 because of the negotiated plea agreement. Additionally, we denied Kim Clayborn's motion on the merits, not ...