United States District Court, M.D. Pennsylvania
William W. Caldwell, United States District Judge.
the court is Defendant Kenneth O. Simmons, Jr.'s
supplemental motion (Doc. 343) to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 of
the United States Sentencing Guidelines Manual
(“USSG” or “Guidelines”). After
careful consideration, we will grant Simmons' motion.
February of 2000, Simmons and co-defendants James Loner, Jr.
(“Loner”) and Thomas Clayborn
(“Clayborn”) were charged in a superseding
indictment with drug distribution, conspiracy, and weapons
offenses. (Docs. 1, 5). After a jury trial, Clayborn was
acquitted, but Simmons and Loner were found guilty of crack
cocaine distribution, conspiracy, and 18 U.S.C. § 924(c)
and § 922(g) charges. (Docs. 120, 121, 124).
and Loner were sentenced on the same day. (Docs. 157, 162).
The Presentence Investigation Report (“PSR”) for
both defendants contained an identical offense conduct
section. (Compare Loner PSR ¶¶ 9-20
with Simmons PSR ¶¶ 9-20). Each
defendant's base offense level was determined to be 38
based on USSG § 2D1.1 “for offenses involving 1.5
kilograms or more of cocaine base [i.e., crack
cocaine].” (Loner PSR ¶ 26; Simmons PSR ¶
Loner was found to be a career offender under USSG §
4B1.1. (Loner PSR ¶ 34). Simmons was not. (Simmons PSR
¶ 34). Because Loner's offense level under the
career offender guideline was lower than that imposed under
§ 2D1.1, however, § 2D1.1 was found to control his
base offense level determination. (Loner PSR ¶ 34).
Loner had a criminal history category of 6, (Loner PSR ¶
46), while Simmons' criminal history category was 5,
(Simmons PSR ¶ 43).
and Loner received identical sentences: 360 months'
imprisonment plus an additional 60-month mandatory
consecutive term of imprisonment for the § 924(c)
charge, resulting in an aggregate of 420 months for each
defendant. (Docs. 157, 162). These sentences were at the
bottom of the range provided by the Guidelines, which were
mandatory at that time. Simmons' § 924(c)
charge was vacated in 2003, leaving him with a sentence of
360 months' imprisonment. (Doc. 257).
November 2007, the United States Sentencing Commission passed
Amendment 706, which reduced the Guidelines' base offense
levels for crack cocaine offenses by two levels. See
USSG app. C, amend. 706 (Nov. 1, 2007). The Sentencing
Commission made Amendment 706 retroactive. USSG app. C,
amend. 713 (Supp. May 1, 2008).
Loner and Simmons moved for a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2) based on Amendment 706. (Docs.
275, 293, 314). The Government did not oppose Loner's
motion, and the portion of his sentence that did not stem
from the § 924(c) count was reduced from 360 months to
324 months. (Doc. 320).
Government initially concurred in Simmons' Amendment 706
motion, (Doc. 279), but subsequently opposed a sentence
reduction for him, (Doc. 280). In its response in opposition,
the Government contended that because Simmons “was
found at his sentencing hearing to be responsible for in
excess of 40 kilograms of crack cocaine, ” his base
offense level of 38 would remain unchanged by Amendment 706,
thereby making him ineligible for a sentence reduction. (Doc.
280 at 2).
Federal Public Defender, who had been appointed under a
standing order to represent Simmons on his Amendment 706
motion, summarily agreed with the Government's assessment
and offered no briefing or argument in opposition. (Doc. 281
at 2). On April 1, 2008, the Public Defender moved to
withdraw from Simmons' case for the reasons provided in
the Government's response in opposition to Simmons'
Amendment 706 motion. (Doc. 281).
April 25, 2008, this court entered an abbreviated order with
background denying Simmons' Amendment 706 motion. (Doc.
284). In that opinion, relying primarily on the parties'
agreed-upon position regarding Simmons' drug weight, we
determined that because Simmons' sentence “was
based in part on [our] determination that Simmons was
responsible for more than 40 kilograms of crack cocaine,
” his base offense level would remain unchanged under
Amendment 706. (Doc. 284 at 2). Accordingly, we held that a
sentence reduction for Simmons was not authorized due to the
constraints of USSG § 1B1.10(a)(2)(B), as Amendment 706
did “not have the effect of lowering the
defendant's applicable guideline range.” (Doc. 284
at 3 (quoting USSG § 1B1.10(a)(2)(B))).
2014, the Sentencing Commission passed Amendment 782, which
reduced the Guidelines' base offense levels for many drug
offenses-including crack cocaine-by two levels. See
USSG app. C, amend. 782 (Supp. Nov. 1, 2014). The Sentencing
Commission made Amendment 782 retroactive as well. USSG app.
C, amend. 788 (Supp. Nov. 1, 2014). Under this latest
revision of the Guidelines' drug weight table, in order
to implicate the highest base offense level-38-the required
weight of crack cocaine is at least 25.2 kilograms. USSG
§ 2D1.1(c)(1) (2014).
both Loner and Simmons filed motions to reduce their
sentences under 18 U.S.C. § 3582(c)(2), citing Amendment
782. (Docs. 324, 326). Loner's motion again went
unopposed by the Government, and his sentence on the
non-§ 924(c) counts was reduced from 324 months to 262
months. (Doc. 329). Loner's amended Guideline range-and
probably his revised sentence on the non-§ 924(c)
counts-would have been lower but ...