The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant has filed a 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 government opposes the motion on the ground that the amendment has no effect on the calculation of Defendant's applicable guideline range. The probation office has submitted an addendum to the presentence report (PSR), also 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 government and the probation office that the amendment does not have that effect, we will deny the motion for reduction in sentence.
In September 2002, a jury convicted Defendant of distributing in excess of fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(2).
The presentence report (PSR) calculated Defendant's guideline range as follows. Defendant's crack-cocaine quantity was ascertained to be at least 1.5 kilograms. Under U.S.S.G. § 2D1.1, this drug quantity gave Defendant a base offense level of 38. Two points were added under U.S.S.G. § 2D1.1(b)(1) for the firearm offense and two points added under U.S.S.G. § 3C1.1 for obstruction of justice, resulting in a total offense level of 42. Defendant was a career offender because he had at least two adult felony convictions for a controlled substance offense or a crime of violence, but his total offense level remained at 42 because U.S.S.G. § 4B1.1, the career offender guideline, provided only an offense level of 37. 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"). However, as a career offender, Defendant was assigned a criminal history category of VI. This made Defendant's guideline range 360 months to life.
At the June 2, 2003, sentencing, the court decided that category VI overstated Defendant's criminal history and reduced his criminal history category to V. We also decided that his offense level was overstated and reduced that to 36. This gave Defendant a guideline range of 292 to 365 months. Defendant was sentenced to 300 months' imprisonment.
The Supreme Court decided that the sentence should be reconsidered under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the Third Circuit directed us to do so. See United States v. Agnew, 407 F.3d 193, 198 (3d Cir. 2005). On June 29, 2005, in light of Booker, we resentenced Defendant to 210 months.
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 ...