The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Robert Ervin, has filed a motion for reduction of his sentence under 18 U.S.C. § 3582(c) pursuant to Amendment 706 to the sentencing guidelines. The government opposes the motion, arguing that the amendment does not apply to Defendant because it does not have the required effect of lowering his applicable guideline range. The probation office has submitted an addendum to the presentence report opining that Defendant is not entitled to a reduction in his sentence for the same reason.
We agree with the government and the probation office and will therefore deny the motion.
On July 18, 2002, Defendant executed a written plea agreement in which he agreed to plead guilty to a superseding information charging him with conspiracy to distribute crack cocaine. The plea agreement specified that the statutory maximum sentence for the offense would be 240 months. (Plea agreement ¶ 1). See 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. (Plea agreement ¶ 12). On July 23, 2002, Defendant pled guilty.
A presentence report (PSR) was prepared. Defendant's crack-cocaine quantity was established at 1.0092 kilograms, giving him a base offense level of 36.*fn1 (PSR ¶ 27). The base offense level was increased by two levels under U.S.S.G. § 2D1.1(b)(1) for the involvement of firearms in the offense, two levels under U.S.S.G. § 3B1.1(c) for Defendant's role in the offense as organizer, leader and manager, and two levels under U.S.S.G. § 3C1.1 for obstruction of justice. This gave Defendant an adjusted offense level of 42. Three points were subtracted from this level for acceptance of responsibility under U.S.S.G. § 3E1.1(a)(2002) and § 3E1.1(b)(1) and (2)(2002), resulting in a total offense level of 39. Defendant's criminal history category was III. Defendant's guideline range was therefore 324 to 405 months.
On December 20, 2002, Defendant was sentenced. He had filed objections to the three upward adjustments in his offense level for the use of firearms, his role in the offense, and obstruction of justice, but withdrew them because his maximum sentence was 240 months, the statutory maximum recognized in his plea agreement. The government moved for a downward departure under U.S.S.G. § 5K1.1 based on Defendant's substantial assistance, specifically recommending a thirty-five percent departure. We granted the government's motion and sentenced Defendant to 156 months' imprisonment.
The probation office's addendum to the PSR calculates Defendant's amended guideline range under Amendment 706. His base offense level for his drug quantity is reduced from 36 to 34, in accord with the amendment's modification of section 2D1.1(c). With all the other guidelines applications remaining unaffected, this gives Defendant a total offense level of 37. Combined with the same criminal history category of III, the resulting guideline is 262 to 327 months, lower than the original range, but still higher than the 240-month statutory maximum sentence specified in the plea agreement.
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 provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.
Id., § 1B1.10(b)(1). The court "shall not reduce the defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range . . . ." Id., § 1B1.10(b)(2)(A). However, in pertinent part, if the defendant had been sentenced to a term of imprisonment "less than the term of imprisonment provided by" his guideline range at the time of the original sentencing, "a reduction comparably less than the ...