The opinion of the court was delivered by: Judge Nora Barry Fischer
Presently before the Court is Defendant Buford Hilliard's ("Defendant") Motion for
Reduction of Sentence Pursuant to U.S.C. § 3582(c)(2) filed on November 9, 2011. (Docket No. 136). The Government filed its response to said motion on December 1, 2011. (Docket No. 138). Counsel was appointed to represent Defendant pursuant to a Standing Order of this Court and appointed counsel*fn1 filed a reply brief on Defendant's behalf on December 20, 2011. (Docket No. 142). Upon consideration of the parties' positions and for the following reasons, Defendant's Motion  is DENIED.
On March 12, 2007, Defendant pled guilty to one count of conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 846 pursuant to a plea agreement with the Government. (Docket No. 84). The parties stipulated in their plea agreement that, among other things, the type and quantity of controlled substance attributable to the Defendant's criminal conduct was at least five (5) grams but less than twenty (20) grams. Plea Agreement at ¶ C.2. The Government further agreed not to file an information under 21 U.S.C. § 851 to enhance the applicable penalties in this case, i.e., at least five (5) years but no more than forty (40) years. Id. at B.7.
Defendant has an extensive criminal history and, as a result of three prior qualifying felony convictions, he qualified as a career offender under Guideline § 4B1.1. Presentence Investigation Report dated 5/2/07 ("PIR") at ¶¶ 29-34. Based on an adjusted offense level of 31 and criminal history category of VI, the advisory guideline range at Defendant's initial sentencing was 188-235 months. PIR at ¶¶ 27, 36, 58. Defendant moved for a downward departure from the career offender guideline range at sentencing. (Docket No. 93). The Court granted Defendant's motion for a downward departure at the sentencing hearing and imposed a sentence of 120 months' incarceration and five (5) years of supervised release with standard and additional conditions. (Docket No. 97). In its Statement of Reasons, the Court explained that:
[i]n considering whether to depart downwardly from the Sentencing Guidelines, in addition to the above stated reasons consistent with 18 U.S.C. § 3553(a) and other reasons stated on the record, the Court considered the relatively small amount of drugs involved in the defendant's prior offenses and the defendant's role in those offenses, the time previously served, as well as the disparity between the sentences advised by the Guidelines for powdered cocaine compared to crack cocaine, per Gunter. The Court also considered that the defendant has already served time for those sentences as well as the amount of time previously served compared to the Sentencing Range called for by the Sentencing Guidelines in this case. The Court also found compelling the defendant's relationship with his family & the fact that his charges and current incarceration have caused great psychological harm to his wife, enough that she had to be admitted to Western Psychiatric Institute when they have two (2) minor children (ages 11 and 13). The Court noted that the defendant has some employment history. The Court having taken all factors into account, and the law with regard to downward departure from the Sentencing Guidelines, the Court grants a downward [departure] [sic] for the defendant given these facts including that the Court finds treating defendant Buford Hilliard as a career offender overstates the seriousness of the offense level, the criminal history and the guidelines ranges in this matter, per the Shoupe case.
Statement of Reasons at 3 (emphasis added).
Subsequent to Defendant's initial sentencing, the Sentencing Commission promulgated Amendment 706 to the Sentencing Guidelines, which lowered the offense level for certain crack cocaine offenses by two levels. See U.S.S.G. Supp.App. C., Amd. 706 (effective Nov. 1, 2007); see also Dillon v. United States, --- U.S. ---, 130 S.Ct. 2683, 2688 (2010). Amendment 706 was made retroactive by the Sentencing Commission on March 3, 2008. See United States v. Mitchell, Crim. No. 06-358, 2009 WL 1309755, at *3 (W.D.Pa. May 11, 2009). On April 4, 2008, Defendant filed his first motion for a sentencing reduction, seeking to have his sentence reduced due to Amendment 706. (Docket No. 103). The Government opposed Defendant's motion, citing, among other things, the fact that the Court had granted a substantial downward departure at Defendant's initial sentencing based, in part, on the disparity between crack and powder cocaine. (Docket No. 110). The parties thoroughly litigated this motion before the Court, submitting extensive briefing for the Court's consideration and argued the motion during two separate hearings. (Docket Nos. 103, 110, 111, 115, 116, 120, 121, 143, 144).
After fully considering the parties' positions, and over the Government's objection, the Court granted Defendant's motion for a sentencing reduction. (Docket No. 119, 144 at 10-12). In so ruling, the Court granted Defendant a two-level reduction from his initial offense level to 29, which after considering a criminal history category of VI, resulted in an advisory guideline range of 151-188. (Docket No. 119). However, because the previous term of imprisonment imposed initially (120 months) was less than the guideline range applicable to the defendant at the time of sentencing (188-235 months), the Court reduced Defendant's sentence "comparably less than the amended guideline range" of 151-188 months to 108 months' incarceration. (Id.; Docket No. 144 at 12).
Neither party appealed this Court's Order granting the sentence reduction in this case.
But, much litigation ensued within the Third Circuit and nationally regarding whether defendants who were deemed career offenders under the guidelines were eligible for sentence reductions under Amendment 706. The United States Court of Appeals for the Third Circuit issued several decisions addressing these complicated issues.
Of note, in United States v. Mateo, 560 F.3d 152 (3d Cir. 2009), the Court of Appeals held that a defendant who qualified as a career offender was not eligible for a sentencing reduction under Amendment 706 because the defendant was sentenced based on the career offender guideline and not the crack cocaine guidelines which were reduced by Amendment 706. Therefore, Mateo holds that Amendment 706 did not have the effect of lowering the "applicable guideline range" for individuals who were deemed career offenders and sentenced pursuant to the career offender guideline. Id. However, the decision in Mateo was narrowed to some extent in United States v. Flemming, 617 F.3d 252 (3d Cir. 2010). In Flemming, the Court of Appeals held that a "under a pre-2003 edition of the Sentencing Guidelines, a career offender who is granted a § 4A1.3 downward departure to the Crack Cocaine Guidelines range is eligible for a sentence reduction under 18 U.S.C. § 3582(c)." Flemming, 617 F.3d at 272. There, the downward departure granted by the district court under Guideline § 4A1.3 had the effect of lowering both the defendant's criminal history category and offense level to the category and level which applied before the ...