The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR REDUCTION IN SENTENCE
I. Background Facts and Procedural History
On January 21, 2004, Defendant pled guilty to four counts of an indictment: (1) conspiracy to distribute and to possess with intent to distribute fifty (50) grams or more of cocaine base ("crack") and one thousand (1,000) grams or more of heroin within one thousand feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860; (2) and (3) using and carrying a firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) possessing a firearm affecting commerce as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Defendant agreed that he was responsible for two kilograms or more of "crack" cocaine base and ten kilograms or more of heroin.
On December 29, 2005, Defendant was sentenced to a total of 168 months imprisonment, 120 months for Count 1 and 24 months for Counts 2 and 3 each, to run consecutively. Defendant was sentenced to an additional 24 months for Count 4, to run concurrently. Defendant initially fell into a sentencing range of 360 months to life imprisonment, but Count 1 carried a mandatory minimum of life imprisonment, which became the Guidelines sentence under § 5G1.1.*fn1
However, this Court granted the government's motion for a downward departure for substantial assistance under the United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 and sentenced Defendant to the reduced terms of imprisonment listed above.
Defendant has now 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. § 3582(c)(2). Defendant asserts that he is entitled to be resentenced under that statute because Amendments 706 and 715 to the Guidelines recently reduced the offense levels and suggested ranges in § 2D1.1 for offenses involving cocaine base, and Defendant pled guilty to and was sentenced for such an offense in Count 1.
Defendant argues that the sentence imposed was based, at least in part, on what his sentence would have been under § 2D1.1 of the Guidelines, without the mandatory minimum and downward departure therefrom. As support for his conclusion, Defendant notes that the final Judgment identifies the otherwise applicable sentencing range under § 2D1.1. According to Defendant, the sentence actually imposed was based on an offense level of 30, reduced by 11 from the original level of 41.*fn2 Thus, Defendant reasons that his new base level, as calculated under the amended § 2D1.1, should be comparably reduced by 11 points. As Defendant's base offense level would now be 39, Defendant argues he should have been sentenced according to a base offense level of 28, which would have reduced the final sentence imposed.
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) . . . , 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 Amendments 706 and 715 to that list, effective March 3, 2008 and May 1, 2008 respectively. As a result, prisoners sentenced pursuant to § 2D1.1 are entitled to request a reduction in their sentences under § 3582(c)(2).
However, for Defendant to be eligible for a reduction, his sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Defendant cites to an unpublished Eastern District of Pennsylvania case that found the defendant, who had been granted a downward departure from a mandatory minimum sentence, eligible for reduction because the sentencing Court "necessarily took into account, among other factors, the actual guideline range which would have been applicable but for the mandatory minimum." United States v. Hedgebeth, 2008 WL 2719574, at * 1 (E.D. Pa. July 10, 2008) (Fullam, J.). Judge Fullam concluded that the imposed sentence was "at least to some extent, influence by, and therefore 'based on'" a lowered sentencing range. Id. However, the Third Circuit recently rejected a similar "consulted" argument when it determined that a defendant sentenced pursuant to the career offender provision was not eligible for a reduction even if the court first looked to the otherwise applicable § 2D1.1 range to determine the sentence under the career offender provision. United States v. Mateo, - F.3d -, 2009 WL 750411, at *2 (3d Cir. 2009).
The Third Circuit explained that the language in § 3582(c)(2) is "clear and unambiguous: 'the term "sentencing range" clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus.'" Id. at *2 (quoting United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008)). The Third Circuit ultimately concluded that "'if an amended guideline does not have the effect of lowering the sentencing range actually used at sentencing, the defendant's sentence was not based on that range within the intendment of [§ 3582(c)(2)].'" Id. (quoting Caraballo, 552 F.3d at 10). A defendant is thus not entitled to a reduction in sentence merely because he was convicted of or pled guilty to a cocaine base offense; rather, the defendant is eligible for a reduction only if his sentence would have been lower had it been imposed after the amendments.
Just as the Third Circuit found that the recent amendments would not have lowered a sentence imposed under the career offender provision, the amendments to § 2D1.1 would not have affected a sentence derived from a mandatory minimum and a § 5K1.1 motion for a downward departure from that minimum. In the present case, Defendant essentially asserts, as did the defendant in Mateo, that because this Court "consulted" the original base offense level to determine the sentence after the departure, Defendant is eligible for a reduction in sentence under § 3582(c)(2). However, for several reasons, ...