The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 103) ("defendant's motion") filed by defendant Shavoun A. Berry ("Berry" or "defendant"). Upon reviewing defendant's motion, defendant's brief in support of defendant's motion (Docket No. 104), and the government's opposition to defendant's motion (Docket No. 107), the court will DENY defendant's motion for the reasons set forth herein.
On November 16, 1999, a federal grand jury returned an indictment charging Berry and Cortez Jordan ("Jordan") with four counts of criminal acts. (Docket No. 1.) The charges stemmed from dealings in crack cocaine.
Count one charged Berry and Jordan with conspiracy to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. § 846. Berry was not named in counts two or three but was named as the sole defendant in count four, which charged Berry with possessing with the intent to distribute less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). A four- count superseding indictment was returned on December 14, 1999, charging the same violations. (Docket No. 19.)
On April 24, 2000, Berry withdrew his earlier plea of not guilty and entered a plea of guilty to count one. (Docket No. 49.) Count four was later dismissed upon motion by the United States. (Docket No. 62.)
Prior to sentencing, defendant filed a motion for downward departure in which he argued that the application of the career offender provision substantially overstated the seriousness of his criminal history pursuant to section 4A1.3 of the United States Sentencing Guidelines (the "Sentencing Guidelines" or "guidelines"). (Docket No. 57.) At the sentencing hearing on August 28, 2000, the district court rejected defendant's argument and determined that Berry was a career offender under section 4B1.1 of the Sentencing Guidelines based upon earlier drug trafficking convictions. In response to this finding, the court determined Berry's offense level under the guidelines to be thirty-four, pursuant to section 4B1.1. The adjusted offense level was reduced to thirty-one, because of Berry's acceptance of responsibility. As a career offender, Berry's criminal history category was determined to be Category VI which corresponds to a sentence range of 188-235 months. (Docket No. 65.)
Defendant was sentenced to a term of imprisonment of 188 months. (Id.) In determining the length of the sentence, the court accepted the factual findings and the application of the Guidelines in the pre-sentence report. (Id.) The sentence imposed was the lowest possible sentence within the guideline range and the district court concluded there was no legal basis for departure. (Id.)
On November 5, 2001, defendant filed a motion to vacate pursuant to 28 U.S.C. § 2255. (Docket No. 73.) The motion to vacate was transferred to a magistrate judge. (Docket No. 74.)
On November 14, 2001, the magistrate judge summarily denied the motion without need for a response. (Docket No. 75.)
Berry filed a notice of appeal on January 28, 2002. (Docket No. 78.) On November 5, 2002, the Court of Appeals for the Third Circuit directed that the application for a certificate of appealability be denied. (Docket No. 93.)
On October 13, 2008, defendant filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c). (Docket No. 103.) In his motion, Berry argued that the career offender status at the time of his original sentencing "substantially overrepresent[ed] the seriousness of defendant's criminal history or the likelihood that the defendant will commit other crimes." U.S. SENTENCING GUIDELINES MANUAL § 4B1.3(b)(1). In addition, Berry argued that he is entitled to a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based upon amendment 706.
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 (the "Sentencing Guidelines" or "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 § 3582, the defendant is not eligible for a reduction in sentence. Even if eligible for a reduction, § 3582(c)(2) ...