Opinion
Case No. 2:05-cr-130.
June 4, 2009
MEMORANDUM OPINION AND ORDER
Defendant Eulis Allen ("Defendant") pleaded guilty to one count of distributing more than 5 grams of cocaine base, commonly referred to as crack cocaine, and was sentenced to a 70 month term of imprisonment. This matter is now before the Court on Defendant's Motion to Reduce Sentence (doc. # 32) pursuant to Amendment 706 to the United States Sentencing Guidelines, which lowered the base offense levels for crack cocaine offenses. For the following reasons, the Court concludes that Defendant is eligible for a sentence reduction and GRANTS Defendant's Motion.
I. Background
Defendant was indicted on one count of knowingly and intentionally distributing more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), on May 12, 2005. (Doc. # 1.) He pleaded guilty to that count on August 19, 2005 (doc. # 16), and the probation officer prepared and transmitted a presentence investigation report. In that report, the probation officer determined that Defendant was responsible for 8.2 grams of crack cocaine, which corresponded to a base offense level of 26. Pursuant to U.S.S.G. § 3E1.1, three levels were deducted for Defendant's acceptance of responsibility for an offense level of 23. The probation officer then detailed Defendant's criminal history, which included two felonies (aggravated trafficking in drugs and burglary) committed in 1995-96, as well as various misdemeanors. Defendant's record counted for 10 points, which resulted in a criminal history category of V. When combined with an offense level of 23, Defendant's guideline range would have been 84 — 105 months.
However, the probation officer also determined that Defendant qualified for career offender status pursuant to U.S.S.G. § 4B1.1(a) because he was over eighteen, the instant offense was a controlled substance offense, and he had at least two prior felony convictions for crimes of violence or controlled substance offenses. The effect of this determination was that Defendant's offense level was set to 31 (offense level of 34 for a crime punishable by more than 25 years incarceration minus three levels for acceptance of responsibility), and his criminal history category was set at VI. See U.S.S.G. § 4B1.1(b). An offense level of 31 and a criminal history category of VI resulted in a guideline imprisonment range of 188 — 235 months.
The Court held a sentencing hearing on March 13, 2006. At that hearing, the Court accepted the probation officer's report in full, including probation officer's designation of Defendant as a career offender and the corresponding 188 — 235 month guideline imprisonment range. The Court then considered the guideline motions for downward departure filed by both Defendant and the Government. (Doc. ## 24, 25). Defendant's motion requested a downward departure in either his offense level or criminal history category, pursuant to U.S.S.G. § 4A1.3, due to over-representation of Defendant's criminal history. The Court reviewed Defendant's criminal history and agreed that category VI substantially over-represented Defendant's criminal history. The Court pointed out that, in its opinion, even category V over-represented the seriousness of Defendant's past conduct, but that U.S.S.G. § 4A1.3(b)(3)(B) limited criminal history category departures in career offender cases to one category. The Court thus granted Defendant's motion, and reduced Defendant's criminal history category to V. (Sentencing Tr. pp. 8-12.) With an offense level of 31 and a criminal history category of V, Defendant's guideline imprisonment range became 168 — 210 months.
The Court next considered the Government's U.S.S.G. § 5K1.1 motion for downward departure due to Defendant's substantial assistance. The Government had recommended a five level reduction in the offense level which would reduce Defendant's offense level from 31 to 26. The Court granted the motion. (Sentencing Tr. pp. 12-13.) With an offense level of 26 and a criminal history category of V, Defendant's guideline imprisonment range became 110 — 137 months.
After considering the motions for guideline departures and hearing from Defendant, the Court turned to the 18 U.S.C. § 3553(a) factors. The Court first noted that Defendant's case was very similar to an Eleventh Circuit case, United States v. Williams, 435 F.3d 1350 (11th Cir. 2006), in which the court of appeals affirmed a district court's decision to sentence a career offender to a reduced term of imprisonment, pursuant to its discretion under Booker and § 3553(a), because applying the career offender guideline range would have been unreasonable. (Sentencing Tr. pp. 25-29.) The Court agreed with that reasoning and stated that, based on the small amount of cocaine at issue in Defendant's case, a guideline range of 188 — 235 months would be unreasonable. The Court also considered Defendant's history and characteristics, pursuant to § 3553(a)(1), and found that they warranted a reduced sentence.
Ultimately, the Court sentenced Defendant to 70 months incarceration, which was the low end of "the imprisonment range of 70 to 87 months under the guidelines, if it is an offense level of 26 minus three for acceptance, so 23 plus a category IV, which would be the guideline range if it is a category V and is reduced to a category [IV], rather, and the career offender guideline need not be applied." (Id. p. 32.) The Court used its discretion underBooker and § 3553(a) to find that applying the career offender guideline range in Defendant's case would be unreasonable: "[I] have found that the guideline sentence would clearly and obviously not be a reasonable sentence. The other factors in [§] 3553 outweigh the weight which should be given to the sentencing guidelines in this particular case." (Id.) The Court, in effect, simply negated the application of the career offender enhancement and returned Defendant to the crack-based guideline range applicable to him before the career offender enhancement (8.2 grams of crack resulted in an offense level of 26 minus 3 levels for acceptance of responsibility), with an additional one category reduction in criminal history from category V to IV due to over-representation of the seriousness of Defendant's criminal history.
II. Amendments to the Sentencing Guidelines
After Defendant was sentenced, the United States Sentencing Commission drafted and approved Amendment 706 to the sentencing guidelines, which amendment became effective November 1, 2007.See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28558, 28571-2 (May 21, 2007). Amendment 706 reduced by two levels the base offense levels for crack cocaine offenses that are listed in the Drug Quantity Table in U.S.S.G. § 2D1.1(c), and had the effect of lowering the guideline sentence ranges applicable to crack cocaine offenses. Subsequently, pursuant to its statutory authority under 28 U.S.C. § 994(u), the Sentencing Commission drafted and approved Amendment 713 to the sentencing guidelines, which applied Amendment 706 retroactively to all crack cocaine sentences and allowed individuals previously convicted of crack cocaine offenses to request a reduction in their terms of imprisonment. See Amendments to the Sentencing Guidelines for United States Courts, 73 Fed. Reg. 217, 217 (Jan. 2, 2008).
18 U.S.C. § 3582(c)(2) governs the retroactive application of a guideline amendment such as Amendment 706 and states that
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 . . . the Court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
U.S.S.G. § 1B1.10 is the applicable policy statement for reducing sentences pursuant to an amendment to the sentencing guidelines. Section 1B1.10 sets forth a court's general authority to reduce a sentence, when sentence reductions are authorized, and the method for determining the extent of a reduction. Subparagraph (a)(2)(B) states that a sentence reduction is not consistent with the policy statement, and thus is not authorized, if "an amendment . . . does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B). Paragraph (b)(1) of § 1B1.10 describes how to determine the extent of a sentence reduction, and states:
In determining whether, and to what extent, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) . . . had been in effect at the time the defendant was sentenced.
III. Analysis
The parties dispute whether Defendant is eligible for a sentence reduction. The Government argues that Defendant, as a career offender, is ineligible as a matter of law for a sentence reduction because his sentence was based on departures from the guideline range established by the career offender enhancement, not the guideline range established by the crack cocaine guideline provisions, and under § 3582(c)(2) and U.S.S.G. § 1B1.10 only defendants whose sentences were based on the crack cocaine guidelines are eligible for a sentence reduction. (Gov't. Resp. p. 2-3, doc. # 34.) Alternatively, the Government argues that the Court, in its discretion, should decline to reduce Defendant's non-guideline sentence because, as stated in U.S.S.G. § 1B1.10(b)(2)(B), "if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate." (Id. p. 3-4.) Defendant, however, argues that he is eligible for a sentence reduction because his sentence was in fact "based on the guideline sentencing range applicable to his case before the career offender guideline was applied[,]" because the Court ultimately returned him to the crack-based guideline range that would have controlled his sentence absent the application of the career offender guideline. (Def. Mot. p. 6-7, doc. # 32.)
The Court agrees with Defendant. To be eligible for a sentence reduction, Defendant's sentence must have been based on an applicable guideline range that has subsequently been lowered by an amendment to the sentencing guidelines. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). This Court has previously held that the "applicable guideline range," i.e. the guideline range upon which a defendant's sentence is based, is the range that was in effect at the time the defendant was sentenced. United States v. Blackwell, No. 2:05-cr-66(2), slip. op. at 12 (S.D. Ohio Feb. 13, 2009). A review of the record and the sentencing transcript makes it clear that, at the time Defendant was sentenced, his applicable guideline range (23/IV = 70 — 87 months) was not driven by his career offender status, as the Court had previously found that applying the career offender guideline provision would result in an unreasonable sentence due to substantial over-representation of Defendant's criminal history. Rather, the Court exercised its discretion under Booker and 18 U.S.C. § 3553(a) to effectively negate the career offender enhancement and to return Defendant to the guideline range derived from the Drug Quantity Table in U.S.S.G. § 2D1.1(c): 8.2 grams of crack cocaine resulted in a base offense level of 26, which was then reduced to 23 due to Defendant's timely acceptance of responsibility.
Even though the Government is correct that the Court then further reduced Defendant's guideline range by applying a one category downward variance in Defendant's criminal history category, Defendant's guideline range was still, ultimately, "based on" the guideline range derived from the Drug Quantity Table, not the career offender guideline provisions. U.S.S.G. § 1B1.10(b)(2)(B) does state that "if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate." In this case, however, a further reduction would be appropriate because the crack cocaine guidelines were a substantial factor in determining Defendant's guideline range, specifically his offense level. Moreover, that guideline range has been lowered by Amendment 706, as under that amendment 8.2 grams of crack cocaine would result in a base offense level of 24 instead of 26.
Defendant is thus eligible to receive a sentence reduction. When Amendment 706 is applied retroactively, Defendant's offense level becomes 21: a base offense level of 24 minus 3 levels for acceptance of responsibility. Leaving the criminal history category undisturbed at category IV results in a guideline imprisonment range of 57 — 71 months. The low end of this range, however, must be reset to 60 months pursuant to U.S.S.G. § 5G1.1(c)(2), which is the statutory mandatory minimum applicable to Defendant and which has not been altered by any 18 U.S.C. § 3553(e) substantial assistance motion. Defendant was previously sentenced to 70 months, the low end of the 70 — 87 month range, and a comparable sentence of 60 months, at the low end of the new 60 — 71 month range, would be appropriate.
The case that Defendant cites and relies upon, United States v. McGee, 553 F.3d 225 (2d Cir. 2009), supports this conclusion. In that case, the defendant's initial guideline base offense level was 26 (subsequently reduced to 23 due to acceptance of responsibility) and his criminal history category was VI, resulting in a guideline range of 92 — 115 months imprisonment. He was designated as a career offender at sentencing, but the district judge departed downward to the original guideline range after finding that the career offender status overrepresented the defendant's criminal history. The defendant was then sentenced to 115 months imprisonment. Id. at 226. Subsequently the defendant moved for a sentence reduction pursuant to Amendment 706, but the district court denied the motion on the ground that the defendant's career offender status and pre-departure, career offender driven guideline range precluded him from being eligible for a sentence reduction. Id.
The Second Circuit reversed. After reviewing the record, the court stated that "it is apparent that McGee was sentenced `based on' a sentencing guideline range that was subsequently lowered by the Sentencing Commission because the district court premised McGee's ultimate sentence on the crack cocaine guidelines." Id. at 227. Rejecting the government's argument that only the pre-departure guideline range is relevant, the court found that the mere fact that the pre-departure range was not controlled by the crack cocaine guidelines does not preclude a defendant from being eligible for a sentence reduction so long as the actual sentence imposed was based on the crack cocaine guidelines. Id. at 228. Because the record indicated that the defendant had in fact been sentenced based on the crack cocaine guidelines, the court held "that a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments." Id. at 230.
The Government attempts to distinguish McGee by pointing to the word "explicitly" in the Second Circuit's holding, and then arguing that this Court did not explicitly state on the record that it was sentencing Defendant based on the crack cocaine guidelines. (Gov't. Resp. p. 3, doc. # 34.) Although it is true that the Court did not definitively state that it was returning Defendant to his crack cocaine based guideline range, it is abundantly clear from the record that that is precisely what the Court in fact did. In reaching a final guideline range of 70 — 87 months the Court noted that it reached this range by taking a base offense level of 26, which was the base offense level applicable to Defendant due to his responsibility for 8.2 grams of crack cocaine, and then reducing it by 3 levels due to Defendant's acceptance of responsibility. (Sentencing Tr. p. 32.) The crack cocaine guidelines were the only thing that the Court could have relied on to select this base offense level. It was not selected at random or for some other reason: it was selected because it was derived from the relevant crack cocaine guideline. This is explicit enough to show that Defendant's sentence and guideline range were based on the crack cocaine guidelines, and that he is eligible for a sentence reduction. See also United States v. Poindexter, 550 F.Supp.2d 578, 580-81 (E.D. Pa. 2008) (where no sentencing transcript available and no explicit statement in the record, court still concluded that the defendant's sentence, reduced from career offender guideline range, was based on crack cocaine guidelines and thus that the defendant was eligible for a sentence reduction).
Finally, pursuant to 18 U.S.C. § 3582(c)(2) and Application Note 1(B)(ii) to U.S.S.G. § 1B1.10, the Court has considered the § 3553(a) factors and the nature and seriousness of the danger posed by Defendant's early release, and find that they do not preclude Defendant from having his sentence reduced. Any argument that Defendant's criminal history makes him a danger to public safety is undermined by the Court's previous findings that Defendant's criminal history substantially overrepresents the seriousness of the danger he poses to the community. Defendant and the probation officer both note that he has taken advantage of multiple educational opportunities while incarcerated and that he has committed no infractions while incarcerated, both of which weigh in favor of granting the sentence reduction.
IV. Conclusion
For the reasons stated above, Defendant is eligible for a sentence reduction under Amendment 706 and 18 U.S.C. § 3582(c)(2), and his Motion to Reduce Sentence (doc. # 32) is GRANTED. His sentence of 70 months incarceration is reduced to 60 months incarceration. All other provisions of the sentence and judgment shall remain the same.