The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MOTION FOR VACATUR OF JULY 25, 2008 ORDER AND LEAVE TO WITHDRAW FROM STIPULATION
All circuit courts to have considered the question agree that the retroactive amendment reducing crack cocaine penalties under U.S.S.G. § 2D1.1 does not apply to defendants sentenced as career offenders. Unfortunately, on July 15, 2008, the government mistakenly entered into a stipulation contrary to this rule. The court issued an order giving effect to that stipulation on July 28, 2008. No new Judgment and Sentence have issued. The government now alerts the court to the error and respectfully seeks leave to withdraw from the stipulation and that the July 25, 2008 order be vacated.
On December 2, 2003, Sacramento Police Narcotic Detectives served a search warrant at one of the defendant's residences. There they found about 518 grams of crack cocaine, packaged in approximately one-ounce quantities, and a loaded 151/2 -inch Mossberg .20 gauge semi-automatic shotgun. The defendant admitted to possessing these items and said that he was buying cocaine for $16,000 per kilogram and selling a kilogram every day or two. PSR ¶¶ 5-8, CR 50 at 11.
The defendant's criminal history includes the following adult convictions:
1. Transport/Sell Narcotic/Controlled Substance in Sacramento County. He was sentenced on June 1, 1995 to 180 days jail. His probation was revoked on September 22, 1997 and he was sentenced to four years in state prison. (PSR ¶¶ 21, 37).
2. Possess/Purchase Cocaine Base for Sale in Sacramento County. He was sentenced on September 22, 1997 to four years in state prison. (PSR ¶¶ 21, 40).
The defendant was charged in the superseding indictment with Possession of Cocaine Base with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1) (Count 1) and Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) (Count 4). CR 7. On August 30, 2005, the defendant pleaded guilty to Counts 1 and 4. CR 48, 50. Under the Plea Agreement, the defendant stipulated that he was a career offender with a base offense level of 37 and a criminal history category of VI. CR 50 at 6.
He was sentenced on November 8, 2005. CR 51. According to the Presentence Investigation Report, he was accountable for 517.78 grams of cocaine base. PSR ¶ 14. Had he been sentenced on Count 1 under U.S.S.G § 2D1.1, his offense level would have been 36; his Criminal History Category would have been V. PSR ¶¶ 14, 46.
However, the defendant was sentenced on Count 1 as a career offender under U.S.S.G. § 4B1.1. PSR ¶ 21. His offense level was therefore 37, which was reduced 3 levels for acceptance of responsibility. Pursuant to U.S.S.G. § 4B1.1(b), his Criminal History Category was VI. He received a term of imprisonment of 262 months, the low end of the applicable guideline range. He was sentenced on Count 4 to 120 months, the statutory maximum, to run concurrently. His estimated release date is January 7, 2023.
In 2007, the Sentencing Commission passed Amendment 706 to U.S.S.G. § 2D1.1(c). Generally speaking, that Amendment adjusted downward by two levels the base offense level applicable to various quantities of crack cocaine.
The parties entered into a stipulation on July 15, 2008 (CR 55) that Amendment 706 lowered the sentencing range "applicable to" the defendant by two levels. The court entered an order approving the stipulation on July 28, 2008 (CR 56). That order found that the retroactive amendment reducing crack cocaine penalties reduced the defendant's applicable offense level from 34 to 32. Thus, at a Criminal History Category VI, his term of imprisonment was reduced to 210 months, the low ...