United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING DEFENDANT'S MOTION FOR A REDUCTION
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
the Court is the pro se motion of Defendant, Jessy
Napper, for a reduction of his sentence. (D.E. 173.) Napper,
Bureau of Prisons (“BOP”) register number
22952-076, is currently incarcerated at the Forrest City
Federal Correctional Complex in Forrest City, Arkansas. (D.E.
173-1.) The United States has filed a response in opposition,
D.E. 175, making the matter ripe for adjudication. For the
reasons discussed below, the motion is DENIED.
January 22, 2013, a federal grand jury returned a three-count
indictment against Napper and three other defendants,
charging them with conspiracy to distribute and possess with
the intent to distribute cocaine base and cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count
One), and aiding and abetting related to possession with
intent to distribute cocaine base (Count Two) and cocaine
(Count Three), in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. (D.E. 2.) On November 7, 2013, shortly
before Napper was scheduled for trial, he entered a plea of
guilty on all three counts. (Minute (“Min.”)
Entry, D.E. 114.) There was no written plea agreement with
the government. (Id.)
Petitioner's guilty plea, the United States Probation
Office conducted a presentence investigation and prepared a
report (“PSR”) in anticipation of sentencing.
(See PSR.) Napper's adjusted offense level was
eighteen, but because he had at least two prior felony
convictions for either a crime of violence or a controlled
substance offense, he qualified for a sentence enhancement as
a career offender. (PSR ¶¶ 15, 21. See
U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 4B1.1 (2013). See also PSR ¶¶ 37, 41,
44 (Defendant's prior drug convictions relevant to §
4B1.1).) This designation automatically adjusted his offense
level to thirty-two. (PSR ¶ 21. See U.S.S.G.
§ 4B1.1(3).) After applying the career offender
enhancement, along with a reduction for acceptance of
responsibility, Napper's total offense level was
twenty-nine, with a criminal history category of VI,
resulting in a guideline range of 151 to 188 months.
(Id. at ¶ 81.)
February 24, 2014, this Court sentenced Defendant to three
concurrent terms of 135 months' imprisonment, followed by
three years of supervised release, and a $300 special
assessment. (Min. Entry, D.E. 148.) The sentence
reflected a credit of sixteen months for time already served.
(Id.) Defendant appealed to the United States Court
of Appeals for the Sixth Circuit, which affirmed his
sentence. United States v. Napper, No. 14-5206 (6th
Cir. Nov. 7, 2014). See D.E. 162 (copy of the
November 1, 2014, the United States Sentencing Commission
passed retroactive amendments to the Sentencing Guidelines,
which lowered all base offense levels for drug offenses
described in Guidelines U.S.S.G. § 2D1.1 and 2D1.11 by
two levels.” United States v. Lucas, 636 F.
App'x 296, 297-98 (6th Cir. 2016) (citing U.S.S.G. Supp.
App. C Amend. 782, 788 (2014)). Section 2D1.1 “governs
the base offense level for various drug quantities.”
United States v. Braden, 643 F. App'x 531, 533
(6th Cir. 2016). The Probation Office relied on § 2D1.1
in calculating Defendant's base offense level. (PSR
¶¶ 14-15.) On July 1, 2016, Defendant filed the
instant motion in this Court, requesting a reduction of his
sentence pursuant to 18 U.S.C. § 3582(c)(2). (D.E. 173.)
authority of a district court to resentence a defendant is
limited by statute.” United States v.
Ross, 245 F.3d 577, 586 (6th Cir. 2001). Eighteen U.S.C.
§ 3582(c) provides that “[t]he court may not
modify a term of imprisonment once it has been imposed”
unless one of its enumerated exceptions applies.
[I]n 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 § 3582(c)(2). “To satisfy the
requirements for a sentence reduction under 18 U.S.C. §
3582(c)(2), ‘a guidelines amendment must have the
effect of lowering the defendant's applicable guideline
range.'” Braden, 643 F. App'x at 533
(quoting United States v. Riley, 726 F.3d 756, 758
(6th Cir. 2013). A defendant's applicable guideline range
is “the range produced under the guidelines'
sentencing table after a correct determination of the
defendant's total offense level and criminal history
category but prior to any discretionary departures.”
United States v. Pembrook, 609 F.3d 381,
385 (6th Cir. 2010) (quoting United States v.
Darton, 595 F.3d 1191, 1197 (10th Cir. 2010)).
argues that the § 3582(c)(2) exception applies to his
case because his guideline range was calculated under §
2D1.1. (D.E. 173 at 1. See PSR ¶ 15.) The
government avers that Defendant's sentence should not be
reduced because § 2D1.1 did not affect the Probation
Office's calculation of his final offense level. (D.E.
175 at 3.) Section 4B1.1 provides that “if the offense
level for a career offender from the table in this subsection
is greater than the offense level otherwise applicable, the
offense level from the table in this subsection shall
apply.” U.S.S.G. § 4B1.1(b). Thus, designation as
a career offender makes a defendant “subject not to the
drug-trafficking offense levels set forth in § 2D1.1,
but to the much more severe career-offender offense levels
set forth in § 4B1.1.” United States v.
Blaine, 656 F. App'x 765, 770 (6th Cir. 2016).
offense level calculated under § 2D1.1 was eighteen,
while his offense level under § 4B1.1(b) was thirty-two.
Thus, the Probation Office properly proceeded in its
calculation by using the level derived from § 4B1.1(b)
rather than § 2D1.1. Therefore, Defendant's
“applicable guideline range is not controlled by the
§ 2D1.1 drug guideline but it is controlled by the
career-offender guideline under U.S.S.G. § 4B1.1.”
Braden, 643 F. App'x at 534. This brings the
sentence outside the scope of § 3582, as
“Amendment 782 did not have any effect on the §
4B1.l career offender guidelines.” Id. at
535. Even if the two-level reduction under § 2D1.1
reflecting the Sentencing Commission's 2014 amendments
had been applied at the time the presentence report was
compiled, it would have had no effect on Defendant's
final offense level of twenty-nine. His offense level under
§ 2D1.1 would have been sixteen rather than eighteen,
and 4B1.1(b)'s offense level of thirty-two would still
the transcript from the sentencing hearing makes clear that
the Court did not rely upon § 2D1.1 in determining
Defendant's sentence. Indeed, it indicates the contrary.
During the hearing, the Court explicitly acknowledged that
§ 4B1.1's career offender enhancement controlled the
guideline range it relied on in sentencing him, rather than
§ 2D1.1. (D.E. 156 at 32:17-23 (“[U]ltimately the
amounts of narcotics that were involved . . . because of the
career offender status, does not impact at least the advisory
range determination.”).) Defense counsel admitted that
the amount of drugs “doesn't affect the guideline
range . . . .” (Id. at 7:21- 22.) The Court
also observed that Defendant “qualifies as a ...