The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Kenneth Burnam, a/k/a/ Venton E. Smith, 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, which generally reduces the base offense level for crack cocaine offenses by two levels. The Public Defender has also filed a supplement to the motion.
The government opposes the section 3582(c)(2) motion on the ground that Defendant received the benefit of a charge bargain. The probation office has submitted an addendum to the presentence report (PSR), concluding that the amendment has no effect on Defendant's 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 conclusion that the amendment does not have that effect, we will deny the motion for reduction in sentence.
In November 1999, Defendant executed a plea agreement, agreeing to plead guilty to an information charging him with maintaining various places for the manufacture, distribution and use of crack cocaine, in violation of 18 U.S.C. § 856(a)(1). Defendant's crack cocaine quantity was at least eleven kilograms. (PSR ¶ 32). Defendant's criminal history category was III and his total offense level was 41. This gave him a guideline range of 360 months to life but because of the statutory maximum that could be imposed for the offense, his guideline range became the statutory maximum and he was sentenced to 240 months' imprisonment (twenty years). Upon the government's later motion under Fed. R. Crim. P. 35(b), in April 2004, we reduced the sentence to eighteen and one-half years.
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.
In applying section 1B1.10, Defendant's guideline range remains unaffected by the amendment. Defendant's drug quantity was at least eleven kilograms of crack cocaine. That still leaves him with a criminal history category of III, a total offense level of 41, and a guideline range of 240 months based on the statutory maximum sentence.
In his pro se motion, Defendant relies on Gall v. United States, U.S. , 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, U.S. , 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). But the Third Circuit does not permit reliance on those cases in a section 3582(c)(2) motion. In United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002), the Third Circuit decided that a motion under section 3582(c) is limited to consideration of the effect of the retroactive amendment on the defendant's sentence. In that case, the defendant wanted to use Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in his section 3582(c)(2) resentencing, but the Third Circuit rejected it. The Third Circuit has also rejected an attempt to use section 3582(c)(2) to make a claim directly under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), without tying it to a retroactive amendment. See ...