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United States v. Myers


February 23, 2009


The opinion of the court was delivered by: Rufe, J.


Defendant Kareem Myers is currently serving a 262-month term of imprisonment for offenses involving the distribution of crack cocaine. He now seeks a reduction of his sentence to reflect Amendment 706 to the United States Sentencing Guidelines, which reduced the sentencing ranges applicable to crack cocaine offenses under Section 2D1.1 of the Guidelines. Defendant, however, was sentenced based on his designation as a career offender and a Guideline range that is unaffected by Amendment 706. Therefore, the Court will deny his Motion.


On February 6, 2006, Defendant pleaded guilty to two counts of distribution of five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).*fn1 For each count, Defendant faced a mandatory minimum term of imprisonment of ten years, a statutory maximum sentence of life imprisonment, a mandatory minimum of eight years of supervised release with a maximum of lifetime supervised release, a four million dollar fine and a one hundred dollar special assessment.*fn2

According to the Pre-sentence Investigation Report ("PSIR"), Defendant had two prior adult felony convictions.*fn3 On February 27, 1997, Defendant was arrested after being found in possession of ten packets of PCP.*fn4 He pleaded guilty on August 7, 1997 in the Philadelphia Court of Common Pleas to a charge of manufacture/delivery/possession with intent to manufacture or deliver a controlled substance.*fn5 Second, Defendant was arrested on October 17, 1998 for selling PCP.*fn6 On December 16, 1999, he was found guilty following a bench trial of the charge of manufacture/delivery/possession with intent to manufacture or deliver a controlled substance.*fn7 As a result of these two prior convictions for controlled substance offenses, Defendant was considered a career offender under Sentencing Guidelines § 4B1.1.*fn8

The PSIR calculated Defendant's offense level as 34. Having pleaded guilty to selling 54.3 grams of crack cocaine, Defendant's base offense level under Sentencing Guidelines § 2D1.1(c)(4) was 32.*fn9 However, as Defendant was designated a career offender and the statutory maximum for his offenses was life, Defendant's base offense level was increased to 37 under § 4B1.1.*fn10 Defendant was then accorded a three-level reduction for acceptance of responsibility, resulting in a final offense level of 34.*fn11

With regard to Defendant's criminal history category, the PSIR reported that Defendant had been arrested three times as an adult and five times as a juvenile. His two adult convictions resulted in a total of six criminal history points.*fn12 Two points were added because the instant offenses were committed less than two years following Defendant's release from custody.*fn13 In total, Defendant was assigned eight criminal history points, establishing a criminal history category of IV.*fn14 Yet, because Defendant was considered a career offender, his criminal history category automatically increased to VI.*fn15 With an offense level of 34 and a criminal history category of VI, Defendant's advisory Guideline range became 262 to 327 months' imprisonment.*fn16

On March 16, 2007, the Court sentenced Defendant to 262 months' imprisonment and eight years of supervised release, as well as a $1,200 fine and a $200 special assessment.*fn17 In rendering its sentence, the Court considered the Guidelines range, noting that it was "a very important part of the sentence" even thought it was only advisory.*fn18 The Court also noted that there was "so much evidence on this record to impose a serious sentence" on Defendant, that the differential between crack cocaine and powdered cocaine when computing the Guidelines ranges was "almost unimportant."*fn19 The Court explicitly stated that it was "aware of the disparity between . . . powder cocaine versus crack . . [and was] not basing [its] decision on any misbelief that the crack cocaine guidelines are mandatory."*fn20

The Court found no grounds for a downward departure from the Guidelines range. It found that a criminal history category of VI did not over-represent the seriousness of Defendant's criminal history, rejecting Defendant's argument that sentencing him in the Guidelines range as a career offender would be "excessive."*fn21 It also refused to depart from the Guidelines range due to Defendant's limited cooperation, his time in solitary confinement or the adverse impact on Defendant's family.*fn22 Finally, the Court rejected Defendant's argument that a long prison sentence would actually impair Defendant's rehabilitation.*fn23

After considering each of the § 3553(a) factors, the Court imposed a sentence at the bottom of the applicable Guidelines range, or 262 months.*fn24 The Court found this sentence reasonable given Defendant's "age, his family needs, his initial cooperation and the length of time . . . that he needs to learn his lesson and be rehabilitated."*fn25 It also found that Defendant was a career offender who posed a high risk to recidivate, and that a sentence within the Guidelines range was necessary to protect the community and deter both Defendant and others from criminal conduct.*fn26 In its explanation of Defendant's sentence, the Court made no mention of what Defendant's Guidelines range would have been had he not been designated a career offender.*fn27

On November 17, 2007, the United States Sentencing Commission ("Commission") adopted Amendment 706 to the Sentencing Guidelines to address what the Commission considered to be unwarranted disparities in the sentences of defendants possessing and distributing various forms of cocaine.*fn28 Amendment 706 provides a two-level reduction in base offense levels for crack cocaine offenses.*fn29 The Commission made Amendment 706 retroactive, effective as of March 2, 2008.*fn30 Citing Amendment 706, Defendant filed a pro se Motion on May 19, 2008, seeking a reduction in his sentence under 18 U.S.C. § 3582.*fn31 The Government filed its response on July 18, 2008,*fn32 and Defendant filed a counseled supplemental memorandum of law in support of his Motion on September 25, 2008.*fn33 This matter is now ripe for disposition.


Defendant's Motion will be denied because his sentence was not "based on" the the sentencing range under § 2D1.1, the section actually altered by Amendment 706. Likewise, Amendment 706 has no effect on the Guidelines range applicable to Defendant. Therefore, the Court lacks the authority under 18 U.S.C. § 3582 to reduce Defendant's sentence.

"Generally, a district court may not alter a term of imprisonment once it has been imposed."*fn34 A district court may, however, modify the sentence of a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission."*fn35 Such a reduction of a defendant's sentence must still be "consistent with applicable policy statements issued by the Sentencing Commission."*fn36 In order for a reduction in a defendant's term of imprisonment to be consistent with the Commission's policy statements, the amendment must be listed in subsection (c) of Sentencing Guidelines § 1B1.10, as Amendment 706 is,*fn37 and it must also "have the effect of lowering the defendant's applicable Guidelines range."*fn38

Defendant is ineligible for a sentence reduction under § 3582. Defendant was sentenced as a career offender and his sentencing range was therefore determined by § 4B1.1, and not by § 2D1.1.*fn39 Amendment 706, which applies to § 2D1.1, has no effect on the sentencing range applicable to Defendant and the Commission has not otherwise lowered the sentencing range for career offenders under § 4B1.1. In other words, Amendment 706 did not actually lower Defendant's sentencing range, nor was Defendant's sentence based on a sentencing range that has been subsequently lowered by the Commission.*fn40 Moreover, Defendant would meet the criteria for career offender status regardless of the recent changes to § 2D1.1.*fn41 As a result, the Court has no authority under § 3582 to reduce Defendant's sentence and will deny Defendant's Motion.

Defendant argues that the Guidelines range prescribed by § 2D1.1 was one of the bases for his sentence, because it was used as a basis for comparison by the Court.*fn42 In general, "[i]f the court concludes that the criminal history category accurately represents the defendant's characteristics, it never reaches the comparison between defendant's sentence under § 4B1.1 and the sentence that would apply if another criminal history category were used," such as § 2D1.1.*fn43

The Court clearly stated at Defendant's sentencing hearing that a criminal history category of VI did not over-represent the seriousness of Defendant's criminal history.*fn44 As a result, the Court did not compare Defendant's Guidelines range under § 4B1.1 to one under § 2D1.1. Thus, § 2D1.1 or a Guidelines range thereunder was not, even partially, a basis for Defendant's sentence.

The Court acknowledges that there may be some career offender cases where the application of § 4B1.1 is influenced by the underlying § 2D1.1 Guidelines range such that the sentence ultimately selected is at least partially "based on" § 2D1.1. This is not such a case. When explaining Defendant's sentence, the Court cited, among other things, Defendant's criminal history and his designation as a career offender, but never mentioned § 2D1.1.*fn45

Moreover, the Court stated that it sentenced Defendant to the bottom of the applicable Guidelines range because of "his age, his family need, his initial cooperation and the length of time . . that he needs to learn his lesson and be rehabilitated."*fn46 Again, there was no mention of nor any comparison to a Guidelines range under § 2D1.1. Thus, Defendant's argument must fail because Defendant's sentence not was based on, even in part, the Guidelines range prescribed by § 2D1.1.

An appropriate Order follows.


AND NOW , this 23 rd day of February, 2009, upon consideration of Defendant Kareem Myers' "Motion for Modification of Sentencing Under U.S.C. § 3582(c)(2). Amendment 706" [Document No. 470], the Government's response [Document No. 477] and Defendant's supplement memorandum of law in support of his Motion [Document No. 491], it is hereby ORDERED that Defendant's Motion is DENIED.

It is so ORDERED.


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