The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR RECONSIDERATION RE: CAREER OFFENDER STATUS
Defendant Clyde Thomas Hull ("Defendant") has filed a Motion for Reconsideration (ECF No. 798/799) of the Court's ruling that Defendant is a "career offender" under the United States Sentencing Guidelines (the "Guidelines"), U.S.S.G. § 4B1.1. For the following reasons, the Court will grant Defendant's Motion for Reconsideration and hold that Defendant does not have "career offender" status for purposes of sentencing.
The Second Superseding Indictment (the "Indictment") in this case accused 21 individuals of participating in a conspiracy from in or about 2003 to on or about May 21, 2009, and substantive narcotics charges, arising out of conduct in the City of Chester. Sixteen defendants pled guilty. Following a jury trial, on March 15, 2011, Defendant was acquitted on one count of conspiracy and found guilty on three counts of distribution of a controlled substance. The Probation Department calculated Defendant's advisory sentence under the Guidelines at 51-63 months. In the Government's Sentencing Memorandum (ECF No. 779) and at Defendant's sentencing hearing, which began on June 22, 2011, the Government objected to the Probation Department's calculation on the basis that Defendant should be classified as a "career offender." A defendant is classified as a career offender under the Guidelines if he satisfies three requirements:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). The first two requirements are satisfied.
With respect to the third requirement, Defendant has one prior offense, a 2002 felony drug crime conviction in Georgia. The dispute which controls the career offender issue concerns Defendant's 2007 felony drug crime conviction in Delaware County. The presentence report concluded that the 2007 Delaware County drug conviction was not a "prior offense" because the underlying conduct was also an overt act for the conspiracy charged in the Indictment in this case. The Government contended that under United States v. Marrone, 48 F.3d 735, 741 (3d Cir. 1995), it was not relevant whether Defendant's conduct underlying the 2007 state court conviction was related to the instant offenses of conviction. The Court initially agreed with the Government and ruled from the bench at the June 22, 2011 sentencing hearing that Defendant was a career offender.
On July 4, 2011, Defendant filed this Motion for Reconsideration. A second hearing was held on July 7, 2011. The final hearing is scheduled for July 18, 2011.
A. The Sentencing Guidelines
At issue in this case is the interplay between several of the Guidelines concerning "career offender" status and "related offenses." U.S.S.G. § 4B1.2. provides the definition of the term "two prior felony convictions" for purposes of determining career offender status. Application Note 1 to U.S.S.G. § 4B1.1. The term "two prior felony convictions" is defined in relevant part as follows: "(1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense. . . and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c). Additionally, "[t]he provisions of §4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under §4B1.1." Application Note 3 to U.S.S.G. § 4B1.2.
Turning to § 4A1.2, "prior sentence" is defined as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1) (emphasis added). The Application Note 1 to U.S.S.G. § 4A1.2 explains: "Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct)." Finally, under § 1B1.3, offenses are "related" if they are "part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2); see also Application Note 9(A) to U.S.S.G. § 1B1.3 ("For two or more offenses to constitute part of ...