The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 241) filed by defendant Mark Hopson ("Hopson" or "defendant"). Upon reviewing defendant's motion and the government's opposition to defendant's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 243), the court will DENY petitioner's motion for the reasons set forth herein.
On May 19, 2003, a federal grand jury returned an indictment charging petitioner with seven counts of criminal acts, based upon conduct occurring between 1998 and 2002. (Docket No. 1.) The charges stemmed from Mark Hopson's dealing in crack cocaine during that period. In count one, Mark Hopson was charged with conspiracy to distribute and conspiracy to possess with intent to distribute 50 or more grams of crack cocaine from 1998 through 2002, in violation of 21 U.S.C. § 846. In counts two through six, defendant was charged (along with his mother, co-defendant Sarah Hopson) with conducting transactions with the proceeds of the illegal drug trafficking. Specifically, count two charged a violation of 18 U.S.C. § 1956(h) (money laundering conspiracy), involving a $16,000 down payment on a 2001 GMC Yukon Denali motor vehicle, a $12,000 child support payment to the Mercer County Court of Common Pleas, and various purchases of household goods in an amount in excess of $100,000. Count three charged a violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2 regarding the payment of $12,000 in child support, and count four charged a violation of 18 U.S.C. § 1957(a) regarding that payment. Count five charged a violation of 18 U.S.C. § 1956(a)(1)(B)(i) regarding the purchase of the GMC Yukon Denali motor vehicle. Count six charged a violation of both 18 U.S.C. § 1957(a) and 18 U.S.C. § 2 regarding the down payment of $16,000 toward the purchase of the vehicle. In count seven, defendant was charged with a violation 18 U.S.C. § 922(g)(1) for possessing a firearm while having previously been convicted of a crime punishable by imprisonment for a term exceeding one year.
A jury trial on those charges was set for April 2005. Prior to the scheduled trial on October 5, 2004, the government filed a notice of information pursuant to 21 U.S.C. § 851 charging two prior offenses. (Docket No. 106.) On February 7, 2005, the government filed a complaint against Mark Hopson charging him with a violation of 18 U.S.C. § 1512(a)(2)(B)(i), for tampering with a witness for the upcoming trial by the use of physical force. (Criminal No. 05-42, Docket No. 1.) A grand jury indicted Hopson on this charge on March 1, 2005. (Criminal No. 05-42, Docket No. 12.) The government petitioned for an arrest warrant for Hopson at Criminal No. 03-151, and it was thereafter issued. Hopson's bond was subsequently revoked. (Docket No. 112.)
On the eve of trial on April 8, 2005, the parties reached a plea agreement, and Hopson changed his plea from not guilty to guilty as to counts one and two of the Indictment at Criminal No. 03-151. (Docket Nos. 138 and 139.) As part of the agreement, the government dropped the other charges at Criminal No. 03-151 and filed an amended information charging Hopson with only one prior felony conviction, as opposed to two. (Docket No. 137.) The court ordered that a presentence investigation report be prepared. (Criminal No. 05-42, Docket No. 55.)
On June 13, 2006, Hopson changed his plea at Criminal No. 05-42 from not guilty to guilty. Hopson's sentencing for all the charges to which he pled guilty also occurred on June 13, 2006. This court, after considering, among other things, the presentence investigation report, sentenced Hopson to a term of imprisonment of 360 months, to be followed by a ten-year term of supervised release, at count one of the indictment at Criminal No. 03-151, and to a concurrent term of imprisonment of 240 months at count two of that same indictment. (Docket Nos. 182 and 183.) At Criminal No. 05-42, Hopson was sentenced to a term of imprisonment of 240 months to run concurrently with the sentence imposed at Criminal No. 03-151. (Criminal No. 05-42, Docket Nos. 56 and 57.)
Defendant filed notices of appeal on July 5, 2006. (Criminal No. 03-151, Docket No. 188; Criminal No. 05-42, Docket No. 63.) On October 9, 2007, the United States Court of Appeals for the Third Circuit affirmed the sentences imposed by this court. (Docket No. 238.)
On or about July 16, 2008, the clerk of court received and filed defendant's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). (Docket No. 241.) In his motion, defendant raises two issues: (1) recent retroactive Sentencing Guidelines amendments for crack cocaine offenses mandate that he be resentenced at a different base level, and (2) his sentence was "jurisdictionally defective" because it was imposed based upon an amended section 851 information.
Generally, a district court may not alter a criminal sentence of punishment once it has been imposed. United States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008). If the defendant's sentence, however, was based upon a sentencing range under the United States Sentencing Guidelines (the "Guidelines" or "Sentencing Guidelines") that has been subsequently lowered, then the court may reduce the defendant's term of imprisonment, provided the reduction is consistent with the applicable policy statement issued by the United States Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable policy statement is found at section 1B1.10 of the Sentencing Guidelines. It states that a reduction is warranted where the applicable guideline range has subsequently been lowered as the result of one of the guideline amendments listed in section 1B1.10(c). U.S. SENTENCING GUIDELINES MANUAL § 1B1.10 (2007). If the sentencing range is not reduced by a listed amendment, then, under section 3582, the defendant is not eligible for a reduction in sentence. Even if eligible for a reduction, section 3582(c)(2) does not provide for a "full de novo resentencing." United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997). The amended sentencing guideline provision is substituted for the corresponding provision, and all other guideline application decisions are not altered. Id.
I. Sentencing Guidelines Amendments
Defendant contends that, based upon amendments 706 and 711 to the Sentencing Guidelines, his base offense level must be recalculated prior to applying any sentencing enhancements, the maximum sentence in his case is the default of twenty years, and the ...