United States District Court, E.D. Pennsylvania
Mitchell S. Goldberg, J.
NOW, this 13th day of March, 2017, upon
consideration of Defendant's motion for a sentence
reduction (Doc. No. 145) and the “Government's
Response to Defendant's Pro Se Motion for a Reduction of
Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 782” (Doc. No. 176), I find as follows:
April 29, 2010, a grand jury returned an eleven count
indictment against Defendant David Pugh and two
co-defendants. Pugh was charged with conspiracy to
distribute, possession with intent to distribute, and
distribution of controlled substances in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(C), (b)(1)(D), and
(b)(2) (Counts One, Two, Six and Seven); possession of a
firearm in furtherance of a drug-trafficking crime in
violation of 18 U.S.C. § 924(c) (Count 8), and
possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1) (Count 9).
March 2, 2011, Pugh pleaded guilty to all counts. Pursuant to
the plea agreement, Pugh stipulated that, based on the
marijuana equivalency tables in Section 2D1.1 of the United
States Sentencing Guidelines, “the equivalent of 8.6
kilograms of marijuana was possessed, distributed, and
possessed with intent to be distributed in furtherance of the
criminal activity jointly undertaken by the defendant and his
co-conspirators; this amount was within the scope of the
defendant's agreement; this amount was reasonably
foreseeable to the defendant in connection with the
conspiracy; and the defendant's Guideline range should be
calculated based on this amount.” (Plea Agreement
¶ 7(b)). The government agreed not to file an
information pursuant to 21 U.S.C. § 851 regarding
Pugh's prior felony convictions. The parties also agreed
and stipulated that Pugh was eligible for a two-level
adjustment for acceptance of responsibility and that neither
party would seek an upward or downward departure.
the presentence report, probation determined that Counts One,
Two, Six, Seven, and Nine should be grouped together and that
Count Eight charging Pugh with a violation of 18 U.S.C.
924(c) could not be grouped with the other counts because it
required a consecutive sentence. Probation noted that section
3D1.3 of the Sentencing Guidelines provides that the offense
level for grouped counts is the highest offense level of the
counts in the group. The base offense level for Counts One,
Two, Six and Seven (the controlled substance counts) was 14.
U.S.S.G. § 2D1.1(c)(13). The base offense level for
Count Nine (possession of a firearm by a convicted felon) was
20 because Pugh committed the offense after receiving a
felony conviction for a controlled substance offense.
U.S.S.G. § 2K2.1(a)(4)(A). Therefore, the count with the
highest offense level was the felon in possession count
(Count Nine) and not the controlled substance counts.
such, Probation stated that “[t]he gun charge will
drive the guidelines” and used 20 as the base offense.
(Presentence Report at ¶ 29). After applying a
three-level reduction for acceptance of responsibility,
Pugh's adjusted offense level was 17. Pugh was in
criminal history category IV. Therefore, Pugh's guideline
range was 37 to 46 months imprisonment on Counts One, Two,
Six, Seven and Nine, followed by a consecutive 60 month term
of imprisonment on Count Eight.
5. At a
sentencing hearing on June 2, 2011, I adopted Probation's
guidelines calculation and sentenced Pugh to 40 months
imprisonment on Counts One, Two, Six, Seven, and Nine to be
served concurrently, and a term of 60 months imprisonment on
Count Eight to be served consecutively to Counts 1 One, Two,
Six, Seven, and Nine, for a total of 100 months imprisonment.
Presently before me is Pugh's motion to reduce his
sentence pursuant to 18 § 3582(c)(2). Therein, he argues
that is he entitled to relief based on Amendment 782 to the
United States Sentencing Guidelines, which reduced the
offense levels corresponding to most drug quantities under
U.S.S.G. § 2D1.1(c) by two levels.
“A district court only has the authority to consider
whether a defendant should receive a reduction in his
sentence under § 3582(c)(2) when the defendant has been:
(1) sentenced to a term of imprisonment based on a sentencing
range that has been subsequently lowered by the Sentencing
Commission; and when such a reduction is (2) consistent with
the applicable policy statements issued by the Sentencing
Commission.” United States v. Weatherspoon,
696 F.3d 416, 422 (3d Cir. 2012). A reduction in a sentence
is not consistent with the relevant policy statement unless
the amendment has “the effect of lowering the
defendant's applicable guideline range.” U.S.S.G.
noted above, Pugh's range under the Guidelines was set by
Section 2K2.1, the section applicable to the felon in
possession offense, and not the drug tables set forth in
Section 2D1.1. Amendment 782 has no impact on Pugh's
sentencing range calculation under the Guidelines. See
Pitts v. United States, 2015 WL 9244285, at *3 (E.D. Pa.
Dec. 17, 2015) (“Since the offense level under Section
2K2.1 for Petitioner's firearms offense was higher than
the offense level under Section 2D1.1 for the drug quantity
of his controlled substances offenses, Petitioner's
sentence was calculated using the higher base offense level
for his § 922(g) firearms offense pursuant to Section
3D1.3(a). He was not sentenced using the offense levels
assigned to the drug quantities described in Section
2D1.1-the only guideline to which Amendment 782 applies.
Therefore, because another guideline controlled
Petitioner's sentencing calculation, Petitioner is not
eligible for an Amendment 782 reduction under §
3582(c)(2)”)). As such, Pugh is not eligible for a
reduction in sentence.
it is hereby ORDERED that Defendant's motion for a
sentence reduction (Doc. No. 145) is DENIED.
 Pugh did not object to Probation's
calculation under the United States Sentencing