The opinion of the court was delivered by: William W. Caldwell United States District Judge
The Defendant filed a pro se motion for reduction of his sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 706 to the sentencing guidelines. That amendment revised U.S.S.G. § 2D1.1(c), the Drug Quantity Table, by generally reducing the base offense level for crack cocaine offenses by two levels. The Federal Public Defender filed a memorandum in support of Defendant's motion.
The government opposes the motion on the ground that Defendant is a career offender and the amendment thus has no effect on the calculation of his applicable guideline range. The probation office has submitted an addendum to the presentence report (PSR), also concluding that the amendment has no effect on his applicable guideline range.
We have authority to reduce Defendant's sentence only if Amendment 706 has the effect of lowering his applicable guideline range. Because we agree with the probation office's calculation that the amendment does not have that effect, we will deny the motion for reduction in sentence.
On June 2, 1999, Defendant pled guilty to distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The presentence report (PSR) calculated Defendant's guideline range as follows. Defendant's crack-cocaine quantity was ascertained to be at least twenty but less than thirty-five grams. Under U.S.S.G. § 2D1.1, this drug quantity gave Defendant a base offense level of 28. Three points were subtracted from this level for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 25.
However, Defendant was classified as 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. Under U.S.S.G. § 4B1.1, the career offender guideline, the forty-year maximum sentence for Defendant's offense called for an offense level of 34, not 25. 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"). Three points were subtracted for acceptance of responsibility, resulting in a total offense level of 31. Under section 4B1.1(b), as a career offender, Defendant was assigned a criminal history category of VI. This made Defendant's guideline range 188 to 235 months. On September 3, 1999, Defendant was sentenced to 188 months, the low end of this range.
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.
As noted, the policy statement tells us not to reduce Defendant's sentence if Amendment 706 "does not have the effect of lowering [his] applicable guideline range." Id., § 1B1.10(a)(2)(B). And in determining whether it lowers his applicable guideline range, we simply replace the amendment "for the corresponding guideline provisions that were applied when the defendant was ...