The opinion of the court was delivered by: Margaret M. Morrow United States District Court
ORDER DENYING DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE
On March 10, 2008, defendant Juan Jose Barrera filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). Barrera pled guilty to one count of possessing a controlled substance with intent to distribute on June 25, 1999, and was sentenced to 188 months in custody on August 29, 2001. Barrera argues that his sentence should be reduced based on Amendment 706 to United States Sentencing Guidelines, which modified the base offense level applicable to crack cocaine offenses, and which was made retroactive effective March 3, 2008.
On January 5, 1999, a federal grand jury returned an indictment charging Barrera with two counts of possessing with intent to distribute a mixture containing cocaine base in violation of 21 U.S.C. § 841(a)(1). On June 25, 1999, Barrera pled guilty to count one of the indictment, which charged that Barrera possessed and sold 49.6 grams of cocaine base to a confidential informant on November 8, 1998. The government also filed an information alleging that Barrera had seven prior felony convictions.
In sentencing Barrera, the court concluded, based on his prior convictions, that Barrera was a "career offender" within the meaning of U.S.S.G. § 4B1.1.*fn1 Based on Barrera's status as a career offender, the court calculated an offense level of 34.*fn2 It reduced Barrera's offense level by two levels based on acceptance of responsibility,*fn3 and departed downward one level due to the small amount of narcotics involved in Barrera's prior convictions, resulting in an adjusted offense level of 31. Based on the adjusted offense level, and a criminal history category of VI, Barrera's Guideline sentencing range was 188 months to 235 months. The court sentenced Barrera to 188 months incarceration.
A. Legal Standard Governing Motions Under § 3582(c)(2)
Section 3582(c)(2) of Title 18 provides that: "The court may not modify a term of imprisonment once it has been imposed except that . . . (2) 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 on its own motion, 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 Sentencing Commission." 18 U.S.C. § 3582(c)(2).
A motion for reduction of sentence under § 3582(c)(2) "is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give [them] the benefits of an amendment to the guidelines." United States v. Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (quoting United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (internal quotation marks omitted)).
Whether to reduce a sentence under § 3582(c)(2) is a discretionary decision. See 18 U.S.C. § 3582(c)(2) ("[T]he court may reduce the term of imprisonment" (emphasis added)); Townsend, 98 F.3d at 512 ("[T]he decision whether to reduce a sentence under § 3582 is within the discretion of the district court judge"); United States v. Cueto, 9 F.3d 1438, 1440 (9th Cir. 1993) ("Courts have discretion to reduce a previously imposed term of imprisonment when the Sentencing Commission reduces the sentencing range, and the reduction is 'consistent with applicable policy statements issued by the Sentencing Commission,'" quoting 18 U.S.C. § 3582(c)(2)).
In determining whether a sentence should be modified following amendment of the guidelines, "the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines . . . been in effect at the time the defendant was sentenced. . . ." U.S.S.G. § 1B1.10(b). In addition, the court should determine whether a reduced sentence is warranted in light of the factors set forth in 18 U.S.C. § 3553(a).*fn4 See United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) ("In considering a motion for such a reduction, we have held that a district court must engage in a two-part analysis. Initially, the court must recalculate the sentence under the amended guidelines, first determining a new base level by substituting the amended guideline range for the originally applied guideline range, and then using that new base level to determine what ultimate sentence it would have imposed. . . . The next step is for the court to decide whether, in its discretion, it will elect to impose the newly calculated sentence under the amended guidelines or retain the original sentence. This decision should be made in light of the factors listed in 18 U.S.C. § 3553(a)").
If an amendment to the guidelines does not change the original sentencing analysis, a motion for reduction of sentence under § 3852(c)(2) is properly denied. See Townsend, 98 F.3d at 513 ("Because Amendment 506 has no effect on Townsend's sentencing range, the district court properly denied his motion for a reduced sentence under § 3582(c)(2)").
B. Whether Barrera Is Eligible to Receive a Sentence Reduction Under Amendment 706 to the Sentencing Guidelines
Effective November 1, 2007, the United States Sentencing Commission adopted Amendment 706, which modified the base offense level applicable to crack cocaine offenses. See U.S.S.G. Supp. To App'x C, Amend. 706 (Nov. 1, 2007); United States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008). In general, the effect of Amendment 706 is to decrease by two levels the base offense level for crack cocaine offenses. See U.S.S.G. Supp. to App'x C, Amend. 706; U.S.S.G. § 2D1.1 (Nov. 1, 2007). Under U.S.S.G. § 1B1.10, titled "Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)," a reduction in sentence under § 3582(c)(2) is not authorized unless an amendment reducing the applicable guidelines range is listed in § 1B.10(c). See U.S.S.G. § 1B1.10(c) (Nov. 1, ...