United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the Court on the defendant's motion to
reduce his sentence, Filing No. 62.
record shows the defendant entered a plea of guilty to an
information charging him with a violation of 21 U.S.C. §
841(a)(1)(b)(1), possession with intent to distribute more
than 5 grams of actual methamphetamine. Filing No. 52, text
minute entry. That offense carries a mandatory minimum
sentence of five years. 21 U.S.C. § 841(b)(1)(B). His
plea was entered pursuant to a Federal Rule of Criminal
Procedure 11(c)(1)(C) agreement. Filing No. 54. In that
binding plea agreement, Baker agreed to a sentence of not
less than 144 months. Id. at 3. The government
agreed to dismiss the Indictment at the time of sentencing
and agreed not to prosecute Baker for firearm crimes.
Id. at 1. The factual basis for the plea included
the fact that Baker had been arrested in a stolen vehicle
possessing methamphetamine and he also possessed a stolen
gun. Id. at 2. He was sentenced on August 25, 2015,
to 144 months, in conformity with the 11(c)(1)(C) agreement.
Filing No. 59, Judgment.
Presentence Investigation Report (Sealed) (“PSR”)
indicates that the 2014 Guidelines Manual, incorporating
amendments effective November 1, 2014, was used in assessing
his case. Filing No. 57, PSR at 7. The Probation Office
determined that Baker's base offense level possession
with intent to distribute 8.16 grams of methamphetamine
(actual) was 24, enhanced by two levels for possession of a
firearm under U.S.S.G. 2D1.1(b)(1) for an adjusted offense
level of 26. Id. at 8. However, Baker was subject to
a career offender enhancement under U.S.S.G.
§4B1.1(b)(2), which resulted in a base offense level of
34. Id. Baker's total offense level, after
deduction of three levels for acceptance of responsibility
under U.S.S.G. §3E1.1(a) & (b), was 31. Id.
His criminal history category was VI as a career offender.
Id. at 15.
absent the career offender designation, he would still have
been in criminal history category VI-based on the assessment
of 30 criminal history points for convictions for offenses
such as drug trafficking, theft by receiving, escape,
operating motor vehicles without consent, and possession of
burglar tools. Id. at 9-17. Based upon a Total
Offense Level 31 and a Criminal History Category VI,
Baker's guideline imprisonment range was determined to be
188 months to 235 months.
18 U.S.C. § 3582, a court may not modify a term of
imprisonment once it is imposed, unless:
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
18 U.S.C.A. § 3582(c)(2). Amendment 782 to the United
States Sentencing Guidelines (sometimes called the
“drugs minus two” or the “2014 drug
guidelines amendment”) reduces offense levels assigned
in the Drug Quantity Table by two levels, resulting in lower
guideline ranges for many drug trafficking offenses.
See Federal Register Notice of Final Action
Regarding Amendment to Policy Statement §1B1.10, 79 Fed.
Reg. 25996-02, 2014 WL 1763009 (F.R.) (May 6, 2014). The
proposed amendment went into effect on November 1, 2014.
Id. The Sentencing Commission has given retroactive
effect to the amendment. Id. at 1; see79
Fed. Reg. 44973-01, 2014 WL 3749936 (F.R.) (Aug. 1, 2014).
782 was recently interpreted by the Supreme Court in
Hughes v. United States, 138 S.Ct. 1765, 1777-78
(2018), with regard to the availability of such a reduction
to a defendant who pleaded guilty pursuant to a plea
agreement under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure. Before the Hughes decision, a
reduction was barred by the Eighth Circuit precedent holding
that, where the parties had entered into an agreement under
Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure
involving an agreed upon sentence, rather than a sentencing
range, § 3582(c)(2) did not apply. See, e.g., United
States v. Williams, 598 F.3d 963, 964-65 (8th Cir.
2010). The Supreme Court's decision in Hughes
removed the impediment to § 3582(c)(2) relief in cases
in which a defendant entered into a Rule 11(c)(1)(C) plea
agreement. Hughes, 138 S.Ct. at 1777-78. The Court
held that a sentence imposed under a Rule 11(c)(1)(C) plea
agreement “is ‘based on' the defendant's
Guidelines range so long as that range was part of the
framework the district court relied on in imposing the
sentence or accepting the agreement.” Hughes,
138 S.Ct. at 1775. The Court held that, even in a case
involving such an agreement, “relief under §
3582(c)(2) should be available to permit the district court
to reconsider a prior sentence to the extent the
prisoner's Guidelines range was a relevant part of the
framework the judge used to accept the agreement or determine
the sentence.” Id. at 1778.
Baker's Rule 11(c)(1)(C) plea agreement is no longer a
bar to § 3582(c)(2) relief. On the other hand, as the
Supreme Court explained, “[i]f the district court
concludes that it would have imposed the same sentence even
if the defendant had been subject to the lower [guidelines]
range, then the court retains discretion to deny relief
[under § 3582(c)(2) ].” Id.
record shows the defendant was sentenced after the November
1, 2014, effective date of the Amendment. To the extent that
Baker's sentence was based on his Guidelines sentencing
range absent the career offender status, his
drug-quantity-based guideline calculation already included
the two-level reduction in the drug base offense level
reflected in Amendment 782. Accordingly, defendant Baker has
received the benefit of the reduced guideline range and no
further benefit is available.
Baker's ultimate guideline range was “based
on” his career offender status, not his drug quantity.
The Probation Office calculated his total offense level, due
to his prior drug trafficking convictions, as a career
offender under Guideline § 4B1.1, with a base offense
level of 34. Amendment 782 did not lower the offense levels
applicable to career offenders. See U.S.S.G. App. C,
Amend. 782. Because Baker's guidelines range was
calculated on the basis of the career offender guidelines,
any amendment to the drug guideline would not “have the
effect of lowering the defendant's applicable guideline
range.” See U.S.S.G. § 1B1.10(a)(2)(B).
In other words, Amendment 782 has no impact on Baker's
sentencing guideline calculation because he was sentenced
under the career ...