Opinion
No. CR03-0081-LRR.
July 23, 2008
ORDER
This matter comes before the court on its own motion under 18 U.S.C. § 3582. In relevant part, 18 U.S.C. § 3582(c) provides:
At the court's request, the United States Probation Office prepared a memorandum that, among other things, addresses the defendant's eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2).
The court may not modify a term of imprisonment once it has been imposed except 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 pursuant to 28 U.S.C. [§] 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in [ 18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2); see also United States v. Auman, 8 F.3d 1268, 1271 (8th Cir. 1993) ("Section 3582(c)(2) is a provision that permits a district court to reduce a term of imprisonment if the sentencing range upon which the term was based is subsequently lowered by the Sentencing Commission.").
For the instant matter, the court does not intend to appoint counsel. See United States v. Legree, 205 F.3d 724, 729-30 (4th Cir. 2000) (concluding that there is no right to assistance of counsel when pursing relief under 18 U.S.C. § 3582(c)); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999) (same); United States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996) (same); United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995) (same); United States v. Reddick, 52 F.3d 462, 464 (2d Cir. 1995) (same). Further, the court does not intend to conduct a hearing prior to denying a reduction based on 18 U.S.C. § 3582(c). See Legree, 205 F.3d at 729-30 (finding that a judge need not hold a hearing on a motion pursuant to 18 U.S.C. § 3582(c)); Restrepo-Contreras v. United States, No. 96-1411, 1996 WL 636560, *2, 1996 U.S. App. LEXIS 28844, at *5 (1st Cir. Nov. 4, 1996) (same); Townsend, 98 F.3d at 513 (concluding district court did not abuse its discretion when it did not hold an evidentiary hearing); United States v. Dimeo, 28 F.3d 240, 241 n. 3 (1st Cir. 1994) (noting that the district court received no input from the parties and conducted no hearing before reducing the defendant's sentence under 18 U.S.C. § 3582(c)); see also Fed.R.Crim.P. 43(b)(4) (stating that a defendant's presence is not required in a proceeding that involves the correction or reduction of a sentence under 18 U.S.C. § 3582(c)). Additionally, the court concludes that United States v. Booker, 543 U.S. 220 (2005), does not apply to proceedings under 18 U.S.C. § 3582(c)(2).
On November 1, 2007, the Sentencing Commission issued Amendment 706, as amended by Amendment 711, to USSG § 2D1.1. See generally USSG App. C at www.ussc.gov. Amendment 706 generally reduces by two levels the offense level that is applicable to cocaine base ("crack") offenses. On December 11, 2007, the Sentencing Commission voted to apply Amendment 706 retroactively to crack offenses, and it set March 3, 2008 as the date that Amendment 706 could be applied retroactively. The Sentencing Commission also promulgated amendments to USSG § 1B1.10, which sets forth the conditions that must exist before a defendant is entitled to a sentence reduction as a result of an amended guideline range. See generally USSG App. C at www.ussc.gov. New USSG § 1B1.10 took effect on March 3, 2008 and, in relevant part, states:
In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
USSG § 1B1.10(a)(1); see also USSG § 1B1.10, comment. (n. 1) ("Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range."). The Sentencing Commission included Amendment 706 within subsection (c). USSG § 1B1.10(c). Further, on April 16, 2008, the Sentencing Commission promulgated Amendment 715 to USSG § 2D1.1 and USSG § 1B1.10, and it set May 1, 2008 as the date that Amendment 715 could be applied retroactively. See generally USSG App. C at www.ussc.gov. With respect to USSG § 2D1.1, Amendment 715 modifies the commentary, that is, revises the manner in which combined offense levels are determined in cases involving crack and one or more other controlled substance. Concerning USSG § 1B1.10, the Sentencing Commission deemed it appropriate to include Amendment 715 within subsection (c). USSG § 1B1.10(c).
Nevertheless, the court is unable to rely on Amendment 706 or Amendment 715 to reduce the defendant's sentence. See generally United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir. 1997) (explaining requirements under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10). Because the defendant is subject to a statutorily required minimum sentence, see 21 U.S.C. § 841(b)(1)(B), application of the retroactive amendment results in an amended guideline range of 120 months imprisonment, see USSG § 5G1.1(b), and the defendant is not entitled to a reduction of his 120 month term of imprisonment. Accordingly, the court concludes that a reduction under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 is not warranted. Cf. United States v. Peters, 2008 U.S. App. LEXIS 9225 (8th Cir. 2008) (concluding statutory mandatory minimum applied, and, consequently, defendant could not rely on Amendment 706 to reduce his sentence under 18 U.S.C. § 3582(c)(2)); United States v. Jones, 2008 U.S. App. LEXIS 8923 (8th Cir. 2008) (same).
Based on a total adjusted offense level of 26 and a criminal history category of III, the court previously determined the defendant's guideline range to be 120 months imprisonment. See USSG § 5G1.1(b). The court sentenced the defendant to 120 months imprisonment on count 1 of the indictment. Here, a total adjusted offense level of 24 and a criminal history category of III results in a guideline range of 63 to 78 months imprisonment, but USSG § 5G1.1(b) once again provides that the court may not impose a sentence below the statutorily required minimum sentence, that is, 120 months imprisonment.
The Clerk of Court is directed to send a copy of this order to the United States, the defendant and the Federal Public Defender.
IT IS SO ORDERED.