Opinion
No. 4:06CR201-DJS.
May 7, 2009
ORDER
On June 19, 2006, defendant Johnnie King pled guilty before the Honorable Stephen L. Limbaugh, Sr. to a charge of possession with intent to distribute in excess of fifty grams of cocaine base. On October 17, 2006, Judge Limbaugh sentenced King to a term of 196 months' imprisonment. In so doing, the Court granted the government's oral motion for a downward departure pursuant to U.S.S.G. § 5K1.1 from the Sentencing Guidelines' imprisonment range of 262 to 327 months. King's direct appeal was dismissed on motion of the government. Now before the Court is King's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), predicated on the retroactive amendments to the Guidelines provisions governing cocaine base offenses, which became effective May 1, 2008.
At sentencing, defendant did not object to his classification as a career offender under § 4B1.1 of the Guidelines, which determination yielded the advisory imprisonment range from which the Court departed downward. Transcript [Doc. #104], p. 23. Applying the career offender provisions, Judge Limbaugh determined the total offense level was 34 and the criminal history category was VI. Id. Judge Limbaugh granted the government's § 5K1.1 motion by departing downward to a total offense level of 30, which, with the criminal history category of VI, suggested an imprisonment range of 168 to 210 months. Id. at 26. The 196 months' imprisonment imposed fell within this range, and, as Judge Limbaugh explained, was reached by the judge subtracting 25% from the bottom of the original career offender range of 262 to 327 months. Id.
This Court must now consider defendant's eligibility for a reduction of sentence pursuant to § 3582(c)(2) based on the retroactive amendments to the cocaine base guidelines. As the Eighth Circuit has repeatedly held, the retroactive Amendment 706 reduced the base offense levels in § 2D1.1(c) based on the quantity of cocaine base, but "did not lower the sentencing range for career offenders under USSG § 4B1.1." United States v. Tingle, 524 F.3d 839, 840 (8th Cir. 2008). See also United States v. Thomas, 524 F.3d 889, 890 (8th Cir. 2008); United States v. Embry, 277 Fed.Appx. 641, 642 (8th Cir. 2008). As a result, King "was not sentenced based on a sentencing range that has since been lowered [and] has not met the eligibility requirements for a reduction of his sentence under § 3582(c)(2)." Tingle, 524 F.3d at 840.
Defendant argues that Judge Limbaugh did not sentence defendant as a career offender, but instead, on the basis of the government's departure motion under § 5K1.1, was able to impose a sentence without regard to the career offender guidelines recommendations. Motion [Doc. #143], pp. 3-4. The sentencing record, as clearly reflected in the transcript cited above, defeats this contention. Defendant's sentence was in fact determined as a downward departure from the career offender imprisonment range, rather than from an offense level derived from § 2D1.1. Section 3582(c)(2) does not authorize a reduction in defendant's sentence as a career offender.
Acting pro se, defendant has filed a supplemental and/or amended motion [Doc. #156] arguing that United States v. Peters, 214 F.3d 861 (8th Cir. 2000), [a decision well before his sentencing in October 2006] shows that he was not correctly classified as a career offender in the first place. Having requested and been appointed counsel to represent him, defendant is not entitled to also separately represent himself pro se. "A district court has no obligation to entertain pro se motions filed by a represented party." Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001), citing United States v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994). In any event, the argument defendant makes is not an issue that can properly be considered on a § 3582(c)(2) motion, given the very narrow circumstances in which that provision permits modification of an imposed term of imprsonment.
Still later and again acting pro se, defendant has filed another amended motion [Doc #159] arguing as a § 3553(a)(6) factor ("unwarranted sentencing disparities") that the Court should consider the sentences his two co-defendants received and their relative culpability in the offense. Because the Court concludes that no sentencing reduction is authorized in defendant's case pursuant to § 3582(c)(2), the Court does not reach consideration of such factors.
Accordingly, for all the foregoing reasons,
IT IS HEREBY ORDERED that defendant's motions for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) [Docs. #131, #143, #156 and #159] are denied.