The opinion of the court was delivered by: Yohn, J.
Currently before me is defendant Allen S. Stratton's motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). For the reasons that follow, I will deny his motion.
After a jury trial in which he was convicted of three counts of
distribution of cocaine base ("crack") within 1,000 feet of a school
and one count of possession with intent to distribute crack within
1,000 feet of a school, in violation of 21 U.S.C. § 860(a), I
sentenced Stratton to 240 months of imprisonment on December 1,
2000.*fn1 Under the applicable Sentencing Guidelines,
Stratton's offense level was initially determined to be 32,*fn2
and he was initially placed in criminal history category IV.
But because he qualified as a career offender under U.S.S.G. § 4B1.1,
he was assigned an offense level of 37 and a criminal history category
of VI, which yielded a guideline range of 360 months to life. Finding that application of the
career-offender provision overrepresented his criminal history,
however, I granted a downward departure under U.S.S.G. § 4A1.3 and
decreased his offense level to 34 and his criminal history category to
V.*fn3 This departure resulted in a guideline range of
235 to 293 months, and I sentenced Stratton to 240 months of
On March 17, 2008, after the United States Sentencing Commission retroactively lowered the base offense levels for most crack offenses by two levels,*fn4 Stratton filed a motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). I granted his motion, see United States v. Stratton, No. 99-326, 2009 WL 506365 (E.D. Pa. Feb. 26, 2009), and, in an order dated April 20, 2009, reduced his prison sentence to 188 months.
As of November 1, 2011, the Sentencing Commission has again retroactively lowered the offense levels for crack offenses,*fn5 and Stratton has again filed a motion for a reduction of his sentence under § 3582(c)(2). This time, however, another amendment to the Sentencing Guidelines renders Stratton ineligible for such a sentence reduction.
As a general rule, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). Congress has, however, provided an exception to that rule "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." Id. § 3582(c)(2). In that case, a court may "reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. (emphasis added). The Third Circuit has interpreted § 3582(c)(2) as granting a district court the discretion to reduce a sentence already imposed where two separate requirements are satisfied: "(1) the defendant's initial sentence must have been 'based on a sentencing range that has subsequently been lowered by the Sentencing Commission,' and (2) the sentence reduction must be 'consistent with applicable policy statements issued by the Sentencing Commission.'" United States v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2)); see also United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009).
In my prior memorandum granting Stratton's first motion for a reduction of his sentence, I concluded that Stratton's prison sentence was based on sentencing guidelines that had subsequently been lowered, see Stratton, 2009 WL 506365, at *5--6, and that conclusion remains valid here. Accordingly, Stratton satisfies the first requirement of § 3582(c). But, in light of another amendment to the Sentencing Guidelines that took effect on November 1, 2011, after I granted his first motion, I cannot conclude here that Stratton satisfies the second requirement, namely, that a sentence reduction be consistent with the applicable policy statements issued by the Sentencing Commission.
The applicable policy statement, which is set forth in U.S.S.G. § 1B1.10 and which is binding on courts, see Dillon v. United States, 130 S. Ct. 2683 (2010), provides that a sentence reduction resulting from the application of a retroactive amendment to the Sentencing Guidelines is not consistent with the policy statement if the amendment "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10 (a)(2)(B). Here, the applicable amendment (Amendment 750) revised the crack quantities in the drug quantity table in § 2D1.1(c) and thereby lowered the base offense levels for most crack offenses. But the amendment did not alter the offense levels that apply to career offenders under § 4B1.1(b).
Because Stratton qualified as a career offender but I departed from the career-offender guidelines in sentencing him, the question whether the amendment has the effect of lowering Stratton's applicable guideline range, and thus whether he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), turns on the definition of "applicable guideline range." That is, the question is whether Stratton's "applicable guideline range" is the sentencing range determined under the career-offender guidelines in§ 4B1.1(b) (the "pre-departure range") or whether his "applicable guideline range" is the sentencing range I arrived at after granting a departure from the career-offender guidelines under § 4A1.3 (the "post-departure range").
In Flemming, a case decided before the 2011 amendments to the Sentencing Guidelines, the Third Circuit concluded, just as I had when I granted Stratton's first motion for a reduction of his sentence, that the Sentencing Guidelines were ambiguous as to whether the applicable guideline range for a defendant who, like Stratton, qualified as a career offender but was granted a departure under § 4A1.3 was his pre- or post-departure range. See 617 F.3d at 260--70 (in light of ambiguity, applying rule of lenity to find defendant eligible for sentence reduction). The other circuits that considered the issue before the 2011 amendments were split. Compare United States v. Munn, 595 F.3d 183, 193 (4th Cir. 2010) (concluding that a departure under § 4A1.3 "is a departure to, as opposed to a departure from, the applicable guideline range"), and United States v. McGee, 553 F.3d 225, 227--30 (2d Cir. 2009) (concluding that the policy statement was ambiguous as to whether a defendant's applicable guideline range is his pre-departure range), with United States v. Pembrook, 609 F.3d 381, 384--87 (6th Cir. 2010) (holding that a defendant's applicable guideline range is his pre-departure range), cert. denied, 131 S. Ct. 1599 (2011), United States v. Darton, 595 F.3d 1191, 1194--95 (10th Cir.) (same), cert. denied, 130 S. Ct. 3444 (2010), and United States v. Tolliver, 570 F.3d 1062, 1065--66 (8th Cir. 2009) (same).
In its 2011 amendment to the policy statement in § 1B1.10, however, the Sentencing Commission expressly addressed the issue and clarified that the "applicable guideline range" is the defendant's pre-departure range. See U.S.S.G. app. C, amend. 759 (reason for amendment); see also id. § 1.B1.10 cmt. n.1(A). As the Sentencing Commission explained, its amendment to § 1B1.10 "adopts the approach of the Sixth, Eighth, and Tenth Circuits and amends Application Note 1 to clarify that the applicable guideline range referred to in § 1B1.10 is the guideline range determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance." Id. app. C, amend. 759 (reason for amendment) (emphasis added). Thus, under the applicable policy statement, Stratton's applicable guideline range is the original sentencing range determined under the career-offender guidelines in § 4B1.1(b). Because that range has not been lowered, under the applicable policy statement in § 1B1.10, Stratton is not entitled to a reduction in his sentence.
Notwithstanding this new definition of "applicable guideline range" in § 1B1.10, Stratton contends that a court applies § 4A1.3 before determining a defendant's applicable guideline range and thus that he is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). He points to two provisions of the Sentencing Guidelines to support his contention.
First, Stratton contends that the new definition in the application notes to § 1B1.10 is inconsistent with the application instructions in § 1B1.1, which, according to him, "compel the conclusion that a departure under § 4A1.3 is part of the calculation of the applicable guideline range." (Def.'s Mot. to Reduce Sentence at 6.) Second, Stratton contends that the version of § 4A1.3 that was in effect when he was originally sentenced suggests that a defendant's applicable guideline range is determined after application of § 4A1.3.
But, while the Third Circuit in Flemming found such readings of § 1B1.1 and § 4A1.3 plausible, the court ultimately concluded that both provisions were ambiguous as to the step at which § 4A1.3 is applied. See Flemming, 617 F.3d at 264--65 (finding Stratton's reading of the application instructions in § 1B1.1 plausible, but asserting that one could also interpret the application instructions as directing courts to make a § 4A1.3 departure after the applicable guideline range has been determined); id. at 268--69 (asserting that the language of § 4A1.3 "facially supports the conclusion that a defendant's 'applicable guideline range' is set after a downward departure under § 4A1.3," but ultimately concluding that "the text of . ...