The opinion of the court was delivered by: Conti, District Judge.
Pending before the court are two motions to modify sentence filed by defendant Michelle Harris ("Harris" or "defendant"). Defendant filed on January 14, 2008 a motion for modification or reduction of sentence based upon an intervening post-sentence change in the United States Sentencing Guidelines ("motion for modification or reduction of sentence") (Docket Nos. 898, 910), and filed on October 23, 2008 a motion to modify sentence imposed based on extraordinary rehabilitation ("motion to modify sentence based upon rehabilitation") (Docket No. 916). Upon reviewing defendant's motions, the government's opposition to defendant's motion for modification or reduction of sentence (Docket No. 899), and the government's opposition to defendant's motion to modify sentence based upon rehabilitation (Docket No. 917), the court will DENY defendant's motions for the reasons set forth herein.
In accordance with a written plea agreement, on May 5, 2005, defendant entered a plea of guilty before this court to Count One of the superseding indictment at criminal action number 03-72. (Docket Nos. 460, 461.) Count One charged defendant with conspiracy to distribute and with possession with intent to distribute 100 grams or more of heroin from November 20, 2002 to February 8, 2003, in violation of 21 U.S.C. § 846. As a consequence of several prior convictions, defendant was determined to be a "career offender" under section 4B1.1 of the United States Sentencing Guidelines (the "Guidelines" or "Sentencing Guidelines").*fn1 By reason of defendant's career offender status, the applicable sentencing guideline range for her case was from 188 to 235 months imprisonment as reflected in the court's tentative findings on June 28, 2006. (Docket No. 711.)
On September 6, 2008, the United States filed a motion pursuant to section 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e), motioning the court on defendant's behalf for the imposition of a sentence below the statutory minimum.*fn2 (Docket No. 769.) That motion was granted by the court on September 7, 2006 and petitioner was sentenced to a term of imprisonment of 72 months. (Docket Nos. 776, 777.)
On or about January 14, 2008, the clerk of court received and filed defendant's motion for modification or reduction of sentence based upon an intervening change in the United States Sentencing Guidelines pursuant to 18 U.S.C. § 3582(c)(2). (Docket Nos. 898, 910.) In her motion, defendant raises two amendments to the Sentencing Guidelines that she claims warrant a reduction in her sentence: (1) "Amendment 9," which reduces the base offense level by two for crack cocaine offenses, and (2) "Amendment 12," which addresses the criminal history score calculation.
On or about October 23, 2008, the clerk of court received and filed defendant's motion to modify sentence imposed based on extraordinary rehabilitation. (Docket No. 916). Defendant argues that the court has discretion to grant a downward departure, post-sentencing, when defendant presents evidence of extraordinary rehabilitation.
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 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 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 "Amendment 9" and "Amendment 12" to the United States Sentencing Guidelines, she is entitled to a reduction in her term of imprisonment, and the court has jurisdictional authority to reopen sentencing under section 3582(c)(2).
In her motion, defendant states "Amendment 9" is designed "to improve crack cocaine sentences which would be a clear, notwithstanding modest step, toward reducing the harsh and unjustifiable disparities between powder cocaine and crack." Defendant also states "Amendment 9" will effectively reduce Petitioner's/Defendant's sentence by two (2) Offense Levels . . . ." Based upon ...