The opinion of the court was delivered by: Eduardo C. Robreno, J.
Petitioner Dennis Jenkins ("Petitioner") is serving a 199-month term of imprisonment for federal offenses involving possession with distribution of cocaine base ("crack") and distribution of crack within 1,000 feet of a public housing authority. Petitioner was subsequently convicted in state court of murder and was sentenced to serve a consecutive life sentence following the completion of his federal sentence. He now seeks the reduction of his drug sentence to reflect Amendment 706 to the United States Sentencing Commission Guidelines (the "Guidelines"), which altered § 2D1.1 of the Guidelines to reduce the sentencing ranges applicable to crack offenses.
Petitioner's motion for a sentence reduction will be denied because: (1) he is not entitled to a reduction since his sentence constituted a non-guideline sentence under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005); (2) his violent past and the danger he poses to the community; and (3) an unwarranted sentencing disparity with co-defendant Otto Barbour would result.
On December 20, 2000, following a jury trial, Petitioner was found guilty of: (1) conspiracy to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 846 ("Count One"); (2) distribution of crack within 1000 feet of a public housing authority, in violation of 21 U.S.C. § 860 ("Count Eleven"); and (3) distribution of crack, in violation of 21 U.S.C. § 841(a)(1) ("Count Four").
At sentencing, the Court found that Petitioner's Total Offense Level was 34 with a Criminal History Category of VI, and attributed approximately 93 grams of crack to Petitioner. On September 28, 2001, Petitioner was sentenced to: (1) 262 months imprisonment on Counts One and Eleven; and (2) 240 months imprisonment on Count Four. All terms of imprisonment are to run concurrently.
Petitioner appealed, challenging the sufficiency of the evidence in support of the conspiracy conviction and the calculation of the amount of crack that was attributable to him. On November 12, 2003, the Third Circuit affirmed the judgments of conviction on Counts Four and Eleven, reversed the conviction on Count One, vacated the sentence and remanded for reconsideration of Petitioner's sentence. United States v. Phillips, 349 F.3d 138, 143-44 (3d Cir. 2003). Although Petitioner also challenged the Court's determination of the drug quantity attributable to him, the Third Circuit rejected the argument. On April 12, 2004, Petitioner was resentenced. The Court reimposed the term of 262 months imprisonment because the vacatur of the conviction on Count One did not affect the sentencing calculation.
Petitioner appealed the second sentence, challenging the factual findings that he was personally responsible for distributing between 50 and 149 grams of cocaine base. On March 20, 2006, the Third Circuit affirmed Petitioner's conviction on Counts Four and Eleven, but in accordance with a general policy of vacating sentences entered pursuant to pre-Booker law, it vacated his sentence and remanded the case for resentencing. United States v. Jenkins, 164 F. App'x 259, 259-60 (3d Cir. 2006).
On May 18, 2009, the Court resentenced Petitioner to 199 months imprisonment, taking the § 3553 factors and the United States Supreme Court decision in Booker into account. The Court referenced congressional intent to minimize disparities in sentencing. In particular, the Court stated "[D]efendant [(Petitioner)] in this case is similarly situated with a [co]defendant [(Otto Barbour)] who the Court has previously sentenced." Tr. Sent. Hr'g 30, May 18, 2009. The Court had sentenced co-defendant Otto Barbour to 187 months imprisonment.*fn1
B. Changes to the Sentencing Guidelines
On November 1, 2007, the United States Sentencing Commission (the "Commission") adopted Amendment 706 to the Guidelines to address what the Commission had come to view as unwarranted disparities in the sentences of defendants who possess or distribute various forms of cocaine. Prior to November 1, 2007, the Guidelines provided for a 100-to-1 ratio in sentences for crimes involving cocaine powder compared to those involving crack.*fn2 For example, § 2D1.1 of the Guidelines provided the same base offense level for a crime involving 150 kilograms or more of cocaine powder and for one involving 1.5 or more kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2006).
Under the November 1, 2007 amendment, the ratio between powder and crack sentences has been decreased. For example, 150 kilograms of cocaine powder is now treated as the equivalent of 4.5 kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2007). The bottom line for individual defendants is that a defendant sentenced under § 2D1.1 for a crack offense after November 1, 2007 receives a base offense level that is two levels lower than what he would have received for the identical offense if he had been sentenced before the November 1, 2007 amendment. 2 Federal Sentencing Guidelines Manual App. C 1160 ("Appendix C").
The Commission also altered the calculation of base offense levels for offenses involving crack and other controlled substances to reduce the impact of a crack conviction. Id. at 1158-59. The base offense level for these offenses is determined by converting the amount of each substance into a comparable amount of marijuana and then determining the base offense level for that amount of marijuana. U.S.S.G. § 2D1.1, comment 10(A)-(E). Amendment 706 provides that a given amount of crack translates into a lesser quantity of marijuana than it did under the old Guidelines. Appendix C at 1158; compare U.S.S.G. § 2D1.1 (2007), with U.S.S.G. § 2D1.1 ...