The opinion of the court was delivered by: McVerry, J.
Now pending before the Court is Defendant Maurice Plummer's MOTION TO VACATE, SET ASIDE, AND CORRECT SENTENCE PURSUANT TO U.S.C. SECTION 3582 (Document No. 182). Although the Court's electronic filing system reflects that R. Damien Schorr, Esquire, remains counsel of record for Plummer, the motion is signed by Plummer and appears to have been filed pro se. The memorandum in support of the motion is well-written and Plummer is to be commended for his efforts. The government has filed a response in opposition to the motion and it is ripe for disposition.
Factual and Procedural Background
On November 13, 2007, Plummer pled guilty to counts 2, 3 and 4 of a four-count indictment at Criminal No. 05-336, which charged him at counts 2 and 4 with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), on or about August 24, 2004 and November 18, 2005, respectively. At count 3, he was charged with conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, in the form commonly known as crack, a Schedule II controlled substance, on or about November 18, 2005, in violation of 21 U.S.C. § 846. The parties stipulated to a quantity of 50-150 grams. Because Plummer had three predicate offenses for a "crime of violence," he was categorized in the Presentence Investigation Report ("PSI") as a "career offender" pursuant to USSG § 4B1.1.
Under the 2007 edition of the Sentencing Guidelines, without the career offender enhancement Plummer would have had a Total Offense Level of 30 based solely on his crack cocaine conviction and a Criminal History category of IV. The advisory guideline range, after reflecting the statutory mandatory minimum of 120 months, would have been 120-125 months imprisonment. The career offender enhancement not only raised the Total Offense Level from 27 to 34 but also increased Plummer's Criminal History category from IV to VI. Based on Offense Level 34 and criminal history VI, the advisory guideline recommended range of imprisonment calculated in the PSI was 262-327 months. Thus, full application of the career offender provision would have resulted in an increase in the advisory guideline recommended range of 142-202 months imprisonment.
Plummer did not raise any legal or factual objections to the "career offender" designation or the advisory guideline range calculated in the PSI. However, he did seek a downward departure and/or variance on the basis that application of the "career offender" provisions overstated the seriousness of his criminal history and resulted in an advisory guideline range that was excessively high. The Court issued Tentative Findings and Rulings (Document No. 156) which: (1) affirmed that the "career offender" designation and advisory guideline range of 262-327 months, as calculated in the PSI, were correct; and (2) granted Plummer's motion for downward departure. The Court reduced Plummer's Criminal History category from VI to V and also reduced his Offense Level. Of particular relevance, the Court concluded that: "the guidelines, without the career criminal enhancements, adequately reflect the seriousness of his prior conduct and the likelihood he will commit other crimes." (Emphasis added). Accordingly, the Court proceeded to sentence Plummer based on Offense Level 27 and Criminal History V, for an advisory guidelines range of 120-150 months.
The Court recognized that the guideline range was advisory and explained that Plummer's actual sentence would be determined at the sentencing hearing based on all of the § 3553(a) sentencing factors. The Court stated:
After granting the motion for downward departure as to both the Offense Level and Criminal History category, the advisory guidelines range of 120-150 months provides an appropriate starting point for the Court's application of the § 3553(a) factors. Obviously, the Court will not further reduce the term of imprisonment due to the mandatory statutory minimum sentence. The Court will reserve decision as to whether to sentence Defendant within the new advisory guideline range or to vary upwardly until after the parties have had the opportunity to be fully heard. (Emphasis added). Ultimately, the Court adopted its Tentative Findings and Rulings and Plummer was sentenced to a term of imprisonment of 144 months.
Effective November 1, 2007, the United States Sentencing Commission implemented Amendment 706 to the Guidelines, which in essence reduced the Offense Level for crack cocaine offenses by two levels. The Amendment was made retroactive in May 2008. Plummer contends that he is entitled to re-sentencing, although he acknowledges that this is a "specific and complicated circumstance."
The right to seek re-sentencing is governed by 18 U.S.C. § 3582(c)(2), which states:
(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that-- . . . (2) in 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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, 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.
(Emphasis added). The crux of the dispute between the parties is whether Plummer was sentenced "based on a sentencing range that ...