The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Defendant Joseph DiFillipo's motion to vacate sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion will be denied.
On October 4, 2005, the United States of America (hereinafter "United States" or "government") filed a one-count criminal complaint against the defendant. (Doc. 1, Compl.). The complaint charged the defendant with distribution and possession with intent to distribute in excess of fifty (50) grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). (Id.) The government filed a felony information regarding the charges on February 9, 2005. (Doc. 15). On February 23, 2005, the defendant pled guilty to the information. (Doc. 19, Am. Plea Agreement; Doc. 22, Guilty Plea).
According to the Presentence Investigation Report (hereinafter "PSR") the defendant had a total offense level of 34, and he was a career offender with a criminal history category of VI under the United States Sentencing Guidelines (hereinafter "Guidelines"). The guideline imprisonment range was computed as 262 to 327 months. (PSR ¶ 48). The government filed a motion for downward departure under Section 5K1.1 of the Guidelines, suggesting as appropriate a guideline range of 168 months to 210 months. (Doc. 26). The defendant also filed a motion for downward departure and asked the court to depart downward from the applicable Guidelines range. (Doc. 25). The court did in fact depart downward from the applicable Guidelines range when, on May 25, 2005, we sentenced the defendant to 120 months imprisonment followed by five years of supervised release. (Doc. 28, Criminal Judgment). Defendant did not appeal his sentence at that time. This sentence represents the mandatory minimum sentence for the crime to which the defendant pled guilty.
On April 23, 2008, defendant filed a motion for modification of his sentence under the retroactive crack cocaine sentencing amendment. (Doc. 30). The government opposed the motion. (Doc. 34, Govt. Opp. Br.). The court denied the motion on July 10, 2008. (Doc. 38, Order of July 10, 2008). The reasoning provided in the order denying the motion indicated that, as a career offender, defendant did not qualify for a sentence reduction. (Id.) Defendant appealed this decision to the Third Circuit Court of Appeals. (Doc. 39, Notice of Appeal). The Third Circuit denied the appeal on July 21, 2009 and issued its mandate and an opinion on October 14, 2009. (Docs. 41 & 42).
On January 21, 2010, defendant filed a document ostensibly seeking an extension of time to file a motion pursuant to sections 2255 and 2241. (Doc. 43). The court eventually construed this as a section 2255 motion and issued a notice of election order pursuant to United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). (Doc. 48). Defendant returned the notice of election, indicating that he chose to have the court re-characterize the motion as a motion for relief under 28 U.S.C. § 2255. (Doc. 49). He further filed an amendment to the motion. (Doc. 51). The court then ordered the government to respond to the defendant's motions. (Doc. 52, Order of Aug. 26, 2010). The government filed its response to the petition on September 9, 2010, and the defendant filed a reply thereto on October 8, 2010. (Docs. 53 & 54). The matter is thus ripe for disposition.
Section 2255 provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255.
Defendant seeks a re-sentencing on the basis that the court, in sentencing him, erroneously considered him a career offender under the Guidelines. The United States argues that the defendant's crime had a mandatory minimum sentence of 120 months, which the court imposed. Because the minimum is mandatory, the court had no discretion to go below that minimum, and the defendant is not entitled to a new sentencing. After a careful, we agree with the government.
First, we will address the defendant's claim that he should not have been deemed a career offender based upon Chambers v. United States, - -U.S. - -, 129 S.Ct. 687 (2009). The Guidelines provide that a defendant is deemed a career offender where: 1) He was at least eighteen years of age when he committed the instant offense; 2) The instant offense is a felony and either a crime of violence or a controlled substance offense; and 3) The defendant has at least two prior felony convictions that are either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1.
In the instant case, it is uncontested that the defendant was at least eighteen years of age when he committed the offense and that it was a controlled substance offense. Therefore, the only issue is whether he has two prior offenses that are either crimes of violence or controlled substance crimes. The PSR indicates that he has two prior felony convictions that are crimes of violence. These crimes are 1) ...