The opinion of the court was delivered by: Jeffrey T. Miller Judge
ORDER DENYING DEFENDANT'S MOTION FOR SENTENCE MODIFICATION UNDER 18 U.S.C. 3582(c)(2) Docket No. 29
On April 9, 2010, pursuant to a plea agreement ("Agreement"), Howard Anton Smith ("Defendant") pleaded guilty to a two-count Superseding Information charging him with use of a communication facility to facilitate the distribution of 8.67 grams of crack cocaine on April 22, 2009 and 7.64 grams of crack cocaine on April 28, 2009 in violation of 21 U.S.C. 843(b). On July 9, 2010, the court sentenced Defendant to two consecutive sentences of 48 months, for a total of 96 months' custody. On September 28, 2012, Defendant moved under 18 U.S.C. § 3582(c)(2) for a reduction in sentence from 96 months to 60 months based upon amendments ("Amendments") to the United States Sentencing Guidelines ("Guidelines") which retroactively modified guideline ranges for crack cocaine offenses. For the reasons set forth below, the motion is DENIED.
When a court accepts a plea agreement, imposes a recommended sentence based on the Guidelines, and those Guidelines are retroactively amended, a defendant may seek § 3582(c)(2) relief. Freeman v. United States, 131 S.Ct. 2685, 2695 (2011).
By its plain terms, § 3582(c)(2) requires that the district court: (1) determine whether the defendant was "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)"; (2) "consider[ ] the factors set forth in section 3553(a) to the extent that they are applicable"; and (3) determine whether "a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
United States v. Chaney, 581 F.3d 1123, 1126 (9th Cir. 1993). The court retains discretion on whether to reduce a sentence under § 3582. United States v. Morales, 590 F.3d 1049, 1051 (2010); see United States v. Cueto, 9 F.3d 1438, 1440 (9th Cir. 1993). The policy statement that applies to § 3582(c)(2) motions instructs a court to substitute only the retroactive amendment and to isolate the marginal effect the old Guideline had on a defendant's sentence. USSG §1B1.10(b)(1); Freeman v. United States, 131 S. Ct. 2685, 2693 (2011). A reduced term of imprisonment must be within the amended Guidelines range unless the sentencing court originally imposed a below-Guidelines sentence. Dillon v. United States, 130 S. Ct. 2683, 2692.
1. The plea agreement was based on the Guidelines.
A defendant may bring a § 3582 motion for a plea agreement sentence based on the Guidelines. Freeman v. United States, 131 S.Ct. 2685, 2693 (2011). In Freeman, the district court calculated the sentencing range, considered advisory guidelines, and imposed a sentence that fell within the guidelines sufficient to meet the objectives of the law. Id. The court expressed judgment that the sentence was appropriate in light of the Guidelines range. Id. Therefore, its decision was based on that range. Id.
Here, Defendant brought a § 3582 motion for an Agreement sentence based on the Guidelines. The court recited the Guideline calculations, applied a base offense level according to § 2D1.1, with a three-level downward adjustment for acceptance of responsibility, followed the recommendation of both parties and sentenced Defendant to a stipulated sentence based upon the statutory maximum. Therefore, its decision was based on the Guidelines and the court may consider whether to reduce Defendant's sentence.
2. Application of the Amendment results in a lower sentencing range.
A defendant is not eligible for a sentence reduction under section 3582(c)(2) when the application of the Amendment does not result in a lower sentencing range. USSG §1B1.10(a)(2)(B); United States v. Leniear, 574 F.3d 668, 673 (2009).
The Amendment reduced the advisory range applicable to Defendant. Pursuant to the Agreement Defendant pled guilty to charges under 21 U.S.C. § 843, resulting in an advisory range of 77-96 months calculated from a base offense level of 24, a three-level downward adjustment for acceptance of responsibility, and criminal history category VI. The Amendment increased the threshold amount of cocaine base required for a five-year mandatory minimum sentence from 5 grams to 28 grams, 21 U.S.C. §§841(b)(1)(B)(iii), 960(b)(2)(C), and increased the threshold amount of crack cocaine required for a ten-year mandatory minimum from 50 grams to 280 grams, 21 U.S.C. §§841(b)(1)(A)(iii), 960(b)(1)(C). On November 1, 2011, the Sentencing Commission increased the quantities of cocaine base required to trigger base offense levels in Guidelines § 2D1.1 to conform with the penalty provisions of the Fair Sentencing Act of 2010. Under these Amendments, Defendant's sentence under the terms of the Agreement would result in an advisory range of 51-63 months, resulting from a base offense level of 20, a three-level downward adjustment for acceptance of responsibility and a criminal history category
VI. Therefore, the court may consider whether to reduce Defendant's sentence.
3. Section 3553(a) factors weigh in favor of retaining the ...