United States v. Deft. 2 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
UNITED STATES OF AMERICA )
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v. ) Criminal No. 00-340-2 (PLF)
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KELSEY KING, )
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Defendant. )
__________________________________________)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant Kelsey King’s pro se motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Upon consideration of the motion, the
applicable law, and the entire record herein, the Court will deny the motion.1
I. BACKGROUND
The defendant was indicted on seven counts for his involvement in the sale of
drugs and possession of illegal firearms. He pleaded guilty to Count Seven of the indictment,
unlawful distribution of cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C). Pursuant to a written plea agreement, the defendant accepted responsibility for
between 50 and 150 grams of crack cocaine and acknowledged that Count Seven carried a
maximum sentence of 20 years. See PSR ¶¶ 3-4. In return for his plea, the government agreed to
dismiss the other six counts of the indictment, not to seek any upward departures, not to oppose a
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The relevant papers reviewed by the Court in connection with this motion include:
Defendant’s pro se Motion to Reduce Sentence (“Mot.”); the Presentence Investigation Report
(“PSR”); the Judgment and Commitment dated May 7, 2002 (“J & C”); and the J & C
Attachment.
sentence at the low end of the guideline sentencing range, to recommend that the defendant
obtain a two-level downward adjustment for acceptance of responsibility under U.S.S.G.
§ 3E1.1, and to recommend dismissal of a case pending against the defendant in the District of
Columbia Superior Court. Id. ¶ 5.
The Court sentenced the defendant to a term of 151 months’ imprisonment. In
doing so, it reasoned as follows: Because the defendant possessed between 50 and 150 grams of
crack cocaine, the Sentencing Guidelines’s drug quantity table, U.S.S.G. § 2D1.1(c), assigned
him a Base Offense Level of 32. He was in Criminal History Category V. The defendant
qualified as a career offender under U.S.S.G. § 4B1.1, however, because he was over 18 years
old and had at least two prior felony convictions for controlled substances offenses. The
applicable offense level under the Career Criminal Provision was 32, the same as that calculated
under U.S.S.G. § 2D1.1(c), but the provision increased the defendant’s Criminal History
Category from V to VI. The Court granted the defendant a three-level downward adjustment for
acceptance of responsibility, yielding a total Offense Level of 29 with a Criminal History
Category of VI. The Guideline sentencing range therefore was 151 to 188 months, and the Court
imposed a sentence of 151 months.
The defendant now asks the Court to reduce his sentence from 151 months to 130
months, pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 706 and 711 to the United States
Sentencing Guidelines. See Mot. at 2. He seemingly acknowledges that the amendments do not
affect the Career Criminal Provision, U.S.S.G. § 4B1.1, but nevertheless argues that because his
sentence was “based on” the offense levels for crack cocaine offenses, the Court should reduce
his Offense Level to 27, with an associated range of 130 to 162 months. See id.
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II. DISCUSSION
In 2007, the United States Sentencing Commission approved Amendment 706,
which lowered the base offense level for most crack cocaine offenses by two levels. See
U.S.S.G., Supp. to App. C, Amend. 706, 711 (2007). In 2008, the Commission made the
amendments retroactive, see id. at Amend. 713, 716 (2008), making some defendants convicted
of crack cocaine offenses eligible for sentence reductions under 18 U.S.C. § 3582(c)(2). To be
eligible for a sentence modification under 18 U.S.C. § 3582, a defendant must show (1) that he
was initially sentenced “based on a sentencing range that has subsequently been lowered” by the
Sentencing Commission; and (2) that the reduction is “consistent with applicable policy
statements issued by the Sentencing Commission.” United States v. Berry, 618 F.3d 13, 16
(D.C. Cir. 2010) (quoting 18 U.S.C. §3582(c)(2)).
The court of appeals has recently determined that defendants who qualify as
career offenders under U.S.S.G. § 4B1.1 are not eligible for sentence modifications under
Section 3582(c)(2) and Amendment 706 because such defendants fail the first part of this test --
that is, they were not sentenced “based on” a sentencing range that has subsequently been
lowered. United States v. Tepper, 616 F.3d 583, 587 (D.C. Cir. 2010); see also United States v.
Berry, 618 F.3d at 15, 17. For the purposes of a Section 3582(c)(2) motion, the sentencing range
applicable to a defendant who qualifies as a career offender is the range provided by the career
offender provision of the Guidelines, and not that suggested by the drug quantity tables for crack
cocaine under U.S.S.G. § 2D1.1. United States v. Berry, 618 F.3d at 18. Amendment 706 only
permits reduction of sentences for crack cocaine offenses when the sentence is based on the
range recommended by the drug quantity tables provided by U.S.S.G. § 2D1.1, and does not
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affect the range provided under the career offender provision, U.S.S.G. § 4B1.1. United States v.
Berry, 618 F.3d at 17-18. Because Amendment 706 does not apply to their sentences, career
offenders are not eligible for sentence modifications under 18 U.S.C. § 3582(c)(2). Id. at 18.
The defendant in this case qualified as a career offender because he was over
18 years of age at the time of this offense and had at least two prior felony convictions for
controlled substance offenses or crimes of violence. See U.S.S.G. § 4B1.1. The guidelines
sentencing range applicable to him therefore is the career offender range, not that provided for
crack cocaine offenses in the drug quantity tables. Because the career offender guideline was not
modified by Amendment 706, the defendant was not sentenced pursuant to a guideline that has
subsequently been lowered. He therefore is ineligible for a sentence modification under 18
U.S.C. § 3582(c)(2). For all of these reasons, it is hereby
ORDERED that defendant’s motion to reduce his sentence under 18 U.S.C.
§ 3582 [112] is DENIED.
SO ORDERED.
/s/_______________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: December 23, 2010
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