The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.
Presently pending before the Court is the Defendant's motion for relief under 18 U.S.C. § 3582(c)(2). That statute empowers the district court to modify a sentence in cases where the original sentence was based on a range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). Such is the case here.
Defendant was originally sentenced on December 8, 2006 to a term of 40 months' imprisonment after pleading guilty to possession with the intent to distribute and distribution of less than five grams of cocaine base. This sentence was based on the U.S. Sentencing Guidelines in existence at the time which, pursuant to §2D1.1, assigned a base offense level of 22 for the type and amount of drugs at issue (i.e., 3.3 grams of cocaine base). Allowing a 3-level reduction for the Defendant's acceptance of responsibility, the final offense level was 19. Application of this final offense level against the Defendant's Criminal History Category of III produced a Guidelines range of 37 to 46 months. Given the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Court treated this range as advisory and imposed a sentence at the lower end of that range.
Subsequently, the United States Sentencing Commission amended §2D1.1 so as to decrease the base offense levels applicable to specific weights of cocaine base. See USSG, Supp. to App. C., Amdt. 706. This so-called "crack amendment" -- also known as "Amendment 706" -- became effective November 1, 2007, id., and was later made retroactive, effective March 3, 2008, under authority granted to the U.S. Sentencing Commission's pursuant to 18 U.S.C. § 3582(c)(2).*fn1
Under the amended Guidelines, the base offense level that would now apply to Defendant's offense is 20, and the final offense level (after accounting for the Defendant's acceptance of responsibility) is 17. Assuming a Criminal History Category of III, the new sentencing range is 30 to 37 months. Both Defendant and the United States agree that a modified sentence of 32 months' incarceration in Defendant's case would reflect a sentence proportional to the one originally imposed.
Defendant, however, maintains that this Court should go further. In fact, it is Defendant's position that his sentence can and should be reduced below the new Guidelines range to a term of 22 months' incarceration. In addition, Defendant posits that he has a right to appear before the Court in connection with a § 3582(c)(2) proceeding. I will address these issues in order.
Pursuant to 18 U.S.C. § 3582(c)(2), a district court "may not modify a term of imprisonment once it has been imposed, except that":
... in 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, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added). As the language of the statute indicates, the reduction of a sentence under § 3582(c)(2) is not an automatic right for the defendant but rather a matter subject to the sentencing court's discretion.
In this case, there is no dispute that the Defendant's circumstances make him eligible for relief under § 3582(c)(2). The primary disagreement between the parties is whether, in the event I were to grant the Defendant's motion for a reduced sentence, I would have the authority to impose a sentence of less than 30 months' incarceration.
To phrase the debate slightly differently, the parties disagree as to whether Booker has any application in the context of a §3582(c)(2) proceeding. In Booker, of course, the Supreme Court held that a mandatory Sentencing Guidelines system violated the Sixth Amendment and further ruled that the appropriate remedy was to excise the statutory provision that made the Guidelines mandatory. See Booker, 543 U.S. at 226-27, 245 (excising 18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV) and explaining that this modification "makes the Guidelines effectively advisory"). Defendant contends that, in revisiting his sentence, the Guidelines, their commentary, and the Sentencing Commission's policy statements are now to be treated as advisory.
The government disagrees and maintains that, far from being advisory, the amended Guidelines, together with the relevant Policy Statement (USSG § 1B1.10 (3/3/08)), establish mandatory limits on this Court's discretion insofar as this Court may decide to reduce Defendant's sentence. As the government points out, §3582(c)(2) expressly requires that any reduction in a defendant's term of imprisonment be "consistent with applicable policy statements issued by the Sentencing Commission."
18 U.S.C.A. § 3582(c)(2). The Policy Statement, in turn, expressly states that, in reducing a defendant's term of imprisonment, "the court shall substitute only the amendments listed ... for the corresponding guideline provisions that were applied when the defendant was [originally] sentenced and shall leave all other guidelines application decisions unaffected" and, further, that the court, with one limited exception, "shall not reduce the defendant's term of imprisonment ... to a term that is less than the minimum of the amended guideline range ...