5:04-cr-30018 | W.D. Va. | Oct 4, 2011
CLERKS OFFICE ,tJ .e (1ts C. GOIJRT
AT HOANOKE, VA FILED 02T 2 i 2211 IN TH E UN ITED STA TES D ISTIUCT COU RT JULIA C. DUDLEY, CLERK FOR THE W ESTERN DISTRJCT OF VIRGW IA BY; DEPUTY CLERK H ARRISON BU RG D IVISION U N ITED STA TES OF A M ERICA ) Crim inal A ction N o. 5:04CR30018-008 ) ) M EM O M N D UM O PIN IO N )
M A RTHA A N N TU RN ER, ) ) ) By: Hon. G len E. Com ud D efendant. Chief U nited States D istrict Judge On February 1, 2005, the defendant, M artha Ann Tt> er, entered a plea of guilty to
conspiring to distribute 50 grnms of more of crack cocaine, in violation of 21 U.S.C. jj 841(a)(1) and (b)(1)(A), and 846.She was originally sentenced to a term of imprisonment of 292 months. On M arch 27, 2008, the court reduced the defendant's term of im prisonm ent to 262 m onths, pursuant to 18 U.S.C. j 35824c)42) and Amendment 706 to the United States Sentencing Guidelines.* Thereafter, the court granted a Rule 35 motion filed by the government and imposed a new tenn of imprisonment of 184 m onths.
Ptlrsuant to its statutory authority, the United States Sentencing Commission has prom ulgated a perm anent nm endm ent to the sentencing guidelines applicable to crim inal cases involving cocaine base or crack cocaine, which im plem ents the provisions of the Fair Sentencing Act of 2010 (Amendment 750). On June 30, 201 1, the Sentencing Commission further decided that, effective N ovem ber 1, 201 1, the nm ended guideline provisions w ill apply retroactively to offenders who were sentenced under prior versions of the sentencing guidelines, and who are still incarcerated. Stated generally, the practical effect of the Sentencing Comm ission's actions is that
*Am endment 706 , which was m ade effective November 1, 2007, and retroactive effective M arch 3, 2008, dtamended j 2D.1 of the Sentencing Guidelines by reducing the offense levels associated with crack cocaine quantities by two levels.'' United States v. Hood, 556 F.3d 226" date_filed="2009-02-20" court="4th Cir." case_name="United States v. Hood">556 F.3d 226, 232 (4th Cir. 2009). certain federal defendants convicted of offenses involving crack cocaine may be eligible for a reduction in their current sentences, ptlrsuant to 18 U.S.C. j 3582(c)(2).
The defendant has now filed a m otion for reduction in sentence based on Amendment 750. Having considered the defendant's m otion, the court is constrained to conclude that the m otion m ust be denied.
''Section 3582(c)(2) authorizes a district court to modify a defendant's term of imprisonm ent when the defendant 'is sentenced to a tenn of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Comm ission.''' United States v. Hood, 556 F.3d 226, 231 (4th Cir. 2009) (quoting 18 U.S.C. j 3582(c)(2)) (emphasis in original). Thus, to be the basis of a reduction under j 3582(c)(2), an nmendment to the sentencing guidelines ''must have 'the effect of lowering the defendant's applicable guideline range.''' ld. (quoting U.S.S.G. j 1B1.10(a)(2)(B)) (emphasis in original).
In the instant case, the defendant was held responsible for 1.5 kilogrnm s of crack cocaine, which originally gave rise to a base offense level of 38 and a total offense level of 35 after adjustment for acceptance of responsibility under U.S.S.G. j 3EI.I. The defendant was also designated as a career offender under U.S.S.G. j 4B1.1, which would have otherwise subjected her to a base offense level of 37 and a total offense level of 34. Since the defendant's base offense level under j 4B1.1 was less than that determined on the basis of the quantity of crack cocaine attributed to the defendant, the court was required to apply the higher base offense level of 38. See U.S.S.G. j 4B1.1(b). Thus, the defendant's career offender designation had no im m ediate effect on her sentence.
A s a result of the 2008 nm endm ents to the advisory guidelines, the quantity of crack cocaine attributed to the defendant gave rise to a base offense level of 36 and a total offense level of 33 after adjustment for acceptance of responsibility. Because that base offense level was less than the career offender base offense level of 37, the defendant's amended guideline range was calculated on the basis of the career offender offense level. Since the amended guideline range was less than that determined at the time of the defendant's original sentencing hearing, the defendant was eligible for a reduction in sentence ptlrsuant to j 3582(c)(2), and the court ultimately reduced the defendant's term of imprisonm ent f'rom 292 months to 262 months.
A lthough the defendant w as entitled to a sentence reduction following the 2008 am endm ents, her status as a career offender precludes her from benefitting from Am endm ent 750. The defendant is still subject to a base offense level of 37 under j 4B1.1, and Amendment 750 does not alter this provision. Therefore, the nm ended guidelines are of no consequence to the defendant, since the calculation of her base offense level and resulting custody range aze driven by her designation as a career offender, rather than the quantity of crack cocaine for which she was held responsible. See U.S.S.G. j 1B1.10 app. n. 1(A) (''(A) reduction in the defendant's term of imprisonm ent is not authorized . . . if . . . an amendm ent . . . is applicable to the defendant but the am endment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision . . . .''). For these reasons, the defendant's m otion for reduction in sentence m ust be denied.
The Clerk is directed to send certified copies of this m em orandllm opinion and the accompanying order to the defendant and al1 counsel of record. 8 day of october ExTcR: This + , 2011.