United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is the defendant's pro se
motion for modification of sentence pursuant 18 U.S.C.
§3582(c)(2) seeking to reduce his 151-month
sentence based on Amendment 782 to the United States
Sentencing Commission Guidelines (the
“Guidelines”), which reduced the offense levels
under the Guidelines by two levels for most drug quantities.
(Doc. 402). Upon the court's review of the
record in this case, the defendant's motion, as well as
the Government's response, (Doc. 410), the
defendant's motion to reduce his sentence is
DENIED. Also pending is the defendant's
motion for return of seized property. (Doc. 398).
Based on the Government's response, (Doc. 404),
defendant's motion for return of seized property is
October 28, 2013, the Zacharae Lowe (the
“defendant”), pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and
possess with intent to distribute more than 100 grams of
heroin in violation of 21 U.S.C. §841(a)(1) and 21
U.S.C. §846. (Doc. 221).
Presentence Report (“PSR”) was prepared and it
found that the defendant qualified as a career offender
pursuant to U.S.S.G. §4B1.1 due to his prior felony
convictions. Consequently, the defendant's offense level
was determined to be 34 and his criminal history category was
VI. The defendant received a three-level reduction for
acceptance of responsibility under U.S.S.G. §3E.1.1(a)
and (b), his Guidelines range was 188 to 235 months'
imprisonment. Thus, he was exposed to a 19 ½-year
maximum imprisonment term and no mandatory minimum term.
Also, the PSR indicated that if the defendant had not
qualified as a career offender, his offense level would have
been 25, his criminal history category IV, and his Guidelines
range 84 to 105 months.
defendant had his sentencing hearing on June 24, 2014. (Doc.
348). The court granted the Government's request
for a two-level downward variance under 18 U.S.C.
§3553(a)(6) and the defendant's offense level was
adjusted to 29 with a Guidelines range of 151 to 188 months.
The defendant was then sentenced to 151 months in prison.
(Doc. 349). He filed an appeal regarding his
sentence. (Doc. 351). On August 19, 2015, Third
Circuit affirmed the defendant's judgment of sentence.
5, 2017, the defendant filed his motion for return of seized
property and a brief in support. (Doc. 398, Doc.
399). The Government responded to the motion on July
24, 2017. (Doc. 404).
19, 2017, the defendant filed a motion pursuant to 18 U.S.C.
§3582(c)(2) to reduce his sentence pursuant to Amendment
782 to the Sentencing Guidelines. After the Federal Public
Defender was appointed to represent the defendant, the Public
Defender filed a motion to withdraw on August 18, 2017 since
the defendant was deemed to be a career offender at the time
of his sentencing. On August 30, 2017, the court granted the
Public Defender's motion. The defendant is now proceeding
pro se. The Government was granted permission to
file its brief in opposition nunc pro tunc and it
was filed on October 12, 2017. (Doc. 410).
782, which went into effect on November 1, 2015 and has been
applied retroactively, generated a two-level reduction for
all base offense levels found in the drug quantity tables in
Sections 2D1.1 and 2D1.11 of the Guidelines.” U.S.
v. Fitzpatrick, 2015 WL 6737027, *1 (D.N.J. Nov. 3,
2015); U.S. v. Rush, __ Fed.Appx. __, 2016 WL
1128404 (3d Cir. March 23, 2016).
U.S. v. Gibbs, __ Fed.Appx. __, 2016 WL 1594636, *2
(3d Cir. April 21, 2016), the Third Circuit stated:
Generally, a district court cannot “modify a term of
imprisonment once it has been imposed” unless a
defendant is eligible for a reduction of sentence pursuant to
§3582(c). Section 3582(c)(2) allows for a reduction if:
(1) the sentence was “based on a sentencing range that
has subsequently been lowered by the Sentencing
Commission;” and (2) “a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. §3582(c)(2); United
States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). A
reduction in 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. §1B1.10(a)(2)(B). The Guidelines
also provide specific instructions for a court when
determining whether a sentence reduction is warranted.
§1B1.10(b)(1). Section 1B1.10(b)(1) instructs
that “the court shall determine the amended guideline
range that would have been applicable to the defendant if the
amendment[ ] ... had been in effect at the time the defendant
was sentenced[, ] ... substituting only the amendment [ ] ...
for the corresponding guideline provision[ ] that [was]
applied” but “leav[ing] all other guideline
application decisions unaffected.” Id.;
see also Lindsey, 556 F.3d at 243.
See also U.S. v. Rush, 2016 WL 1128404, *2.
case, if the two-level reduction under Amendment 782 is
applied, the defendant's base offense level would be
reduced to 27 and his Guidelines imprisonment range regarding
his convicted drug offense would be reduced from the range
found at his sentencing of 151 to 188 months. However, the
court will deny the defendant's instant motion since it