The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR REDUCTION OF SENTENCE
I. Facts and Procedural History
Defendant was arrested after he made several sales of cocaine base (crack) during a DEA surveillance operation. Defendant then pled guilty to one count of 21.U.S.C. § 846 for conspiracy to distribute controlled substances. The plea agreement contained a stipulation that Defendant was responsible for more than 50 grams of cocaine base but less than 150 grams.
During sentencing, the government explained that Defendant had provided substantial assistance and requested the Court grant its § 5K1.1 motion for a downward departure based on that cooperation. (Sentencing Hr'g Tr. 2-4). Defendant, who had previously been convicted of two felonies involving either a crime of violence or a controlled substance and thus qualified as a career offender, also moved for a downward departure under § 4A1.3, which allows the Court to depart downward from the Sentencing Guidelines if "reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes . . . ." (Sentencing Hr'g Tr. 4-6). Defendant also requested a departure for extraordinary rehabilitation or for extraordinary mental and emotional conditions. (Sentencing Hr'g Tr. 6-12).
The Court ultimately determined that Defendant had provided substantial assistance and was entitled to a downward departure under § 5K1.1. (Sentencing Hr'g Tr. 19). However, the Court denied the requests for a departure based on extraordinary rehabilitation, which the Court found was in Defendant's own interest, and for a departure under § 4A1.3, choosing instead to "adhere to the criminal [sic, should read 'career'] offender enhancement." (Sentencing Hr'g Tr. 19) After factoring in Defendant's very substantial assistance, the Court sentenced Defendant to a term of 144 months, calculated by cutting in half the number of months of incarceration in the middle of the suggested career offender sentencing range.*fn1 (Sentencing Hr'g Tr. 19-20). Defendant has currently served over seven years of his imprisonment term.
Defendant has filed a Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2). That statute allows for the modification of a term of imprisonment after it has been imposed if the sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3852(c)(2). Defendant asserts that he is entitled to be resentenced under that statute because the Sentencing Guidelines were recently amended to reduce the suggested ranges for cocaine base offenses. Specifically, Defendant relies on Amendment 706, which lowered base offense levels, and therefore the suggested ranges, for cocaine base offenses set forth in U.S.S.G. § 2D1.1 of the Sentencing Guidelines.
Defendant argues that his sentence was based, at least in part, on the amended sentencing ranges because even though the Court followed a different guideline range for career offenders, the Court still must take into account what the sentence would have been under § 2D1.1 had the defendant not been a career offender. Thus, Defendant contends that he is entitled to a reduction in sentence similar to what he would have been eligible for had he not been sentenced as a career offender under U.S.S.G. § 4B1.1.
A. Retroactive Application of Amendment 706 to Career Offender Sentences under 18 U.S.C. § 3582(c)(2)
Section 3582(c)(2) provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
U.S.S.G. § 1B1.10 identifies the amendments that may be retroactively applied pursuant to the authority granted in § 3582(c)(2). The Sentencing Commission added Amendment 706, which reduced the offense levels applicable to cocaine base offenses in § 2D1.1 by two levels, to the list of retroactive amendments on December 11, 2007, effective March 3, 2008. As a result, prisoners sentenced pursuant to § 2D1.1 are entitled to request and receive a reduction in their sentences under § 3582(c)(2).
Defendant does not suggest that his sentence was derived directly from the amended § 2D1.1; rather Defendant acknowledges that once the Court determined he was a career offender, the Court followed the sentencing procedure under § 4B1.1, not § 2D1.1. § 4B1.1(b) instructs that a judge should apply the higher of the offense level listed on the career offender table in that section or the offense level otherwise applicable. The career offender table, in turn, uses the offense statutory maximum to determine the offense level. In Defendant's case, the offense level under the career offender table was 34, including a three level reduction for acceptance of responsibility and timely notice of plea under § 3E1.1, whereas the otherwise applicable offense level was 31, also including the § 3E1.1 reductions. Defendant simply asserts that because the procedure in § 4B1.1 must consider the otherwise applicable offense level under § 2D1.1, any sentence under §4B1.1 is "based on" the amended § 2D1.1 for purposes of §3582(c)(2).
Citing Watson v. United States, 128 S.Ct. 579, 583 (2007) for the proposition that absent a statutory definition, words in a statute are assumed to possess the meaning ascribed to them in common usage, Defendant argues that this Court must accept the standard definition of "based on" when deciding if a career offender sentence under § 4B1.1 is "based on" the amended § 2D1.1. According to Defendant, the Merriam Webster Dictionary definition of "base" includes "the bottom of something considered its support," "a supporting or carrying ingredient," and "the starting point or line for an action or undertaking." However, even using those definitions, the Court cannot conclude that when a judge compares the § 4B1.1 and § 2D1.1 sentences and concludes that the § 4B1.1 career offender sentence applies, the judge is "basing" the sentence on § 2D1.1. § 4B1.1 only instructs the court to consider the otherwise applicable sentence under § 2D1.1 when determining whether the offense level is higher under the career offender table than the sentence otherwise applicable. Once ...