United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER U.S. DISTRICT JUDGE
before the court are the Defendant's pro se
letter requesting a sentence reduction (Docket No. 151), and
the Government's Response (Docket No. 154).
Defendant appears to seek a reduction in his sentence based
on Amendment 782 to the United States Sentencing Guidelines.
Amendment 782, which went into effect on November 1, 2014,
reduces by two the offense levels assigned in the Drug
Quantity Table, U.S.S.G. § 2D1.1, resulting in lower
guideline ranges for most drug trafficking offenses. The
Amendment has been given retroactive effect. U.S.S.G. §
sentence of imprisonment is a final judgment and may be
modified by a district court only in limited circumstances.
Dillon v. United States, 560 U.S. 817, 130 S.Ct.
2683, 2690, 177 L.Ed.2d 271 (2010). A limited exception to
the general rule of finality is authorized by 18 U.S.C.
§ 3582(c)(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 and made retroactive
by the Sentencing Commission. Section 3582(c)(2) provides:
(c) Modification of an imposed term of imprisonment.--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
the Director of the Bureau of Prisons, 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
determining whether, and to what extent, a reduction in the
defendant's term of imprisonment under 18 U.S.C. §
3582(c)(2) and this policy statement is warranted, ”
the court is to “determine the amended guideline range
that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in subsection (d) had
been in effect at the time the defendant was
sentenced.” U.S.S.G. § 1B1.10(b)(1).
case, the Defendant was convicted after a jury trial, before
now-retired Judge John T. Nixon, of drug trafficking
involving 50 grams or more of cocaine base and a quantity of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
One); possession of firearms in furtherance of drug
trafficking, in violation of 18 U.S.C. § 924(c) (Count
Two); and unlawful possession of firearms by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924 (Count Three). (Docket Nos. 11, 37, 101, 147). At the
subsequent sentencing hearing, Judge Nixon imposed concurrent
life sentences on Counts One and Three, and a consecutive
60-month sentence on Count Two. (Docket Nos. 81, 101). The
life sentence imposed on Count One was required by 21 U.S.C.
§ 841(b)(1)(A) because the offense involved 50 grams or
more of cocaine base, as found by the jury, and the Defendant
had two or more prior felony drug offenses. (Docket No. 101,
at 11; Docket No. 147, at 16, 19). The 60-month sentence for
Count Two was also mandated by statute, specifically 18
U.S.C. § 924(c)(1)(A)(i), 924(c)(1)(D)(ii). (Docket No.
101, at 18; Docket No. 147, at 16, 19). As for Count Three,
the Defendant qualified as an Armed Career Criminal,
triggering the statutory sentencing range of 15 years to life
under 18 U.S.C. § 924(e). (Docket No. 101, at 18-19;
Docket No. 147, at 7, 16, 19). On appeal, the Sixth Circuit
affirmed, and the Supreme Court denied the Defendant's
petition for writ of certiorari on June 4, 2007. (Docket Nos.
Order entered December 6, 2016, Judge Nixon reduced the
Defendant's sentence on Count Three to the maximum
sentence of 120 months under the firearms statute, based on
an agreement of the parties, because the Defendant no longer
qualified as an Armed Career Criminal in light of Johnson
v. United States, 135 S.Ct. 2551 (2015). (Docket Nos.
144, 145). On January 19, 2017, the President commuted the
Defendant's life sentence on Count One to a sentence of
240 months imprisonment, but left all other components of the
sentence intact. (Docket No. 148, at 6). This case was
subsequently transferred to the undersigned Judge.
discussed above, the Defendant's sentence on Count One
was based on the drug trafficking statute, 21 U.S.C. §
841(b)(1)(A), and the sentence on Count Two was mandated by
the firearms statute, 18 U.S.C. § 924. The
Defendant's sentence on Count Three was based on an
agreement of the parties to the maximum sentence under the
firearms statute. The Sentencing Guideline for drug
trafficking offenses did not serve as a basis for the
Defendant's sentence on any of the three counts.
Therefore, Amendment 782's two-level reduction to the
Drug Quantity Table does not serve to lower the
Defendant's offense level or sentencing range.
See U.S.S.G. § 1B1.10, App. Note 1(A)
(Statutory mandatory minimum is to be applied before
determining whether the applicable guideline range has been
lowered by a retroactive amendment); United States v.
Kelley, 570 Fed.Appx. 525, 531 (6th Cir.
2014)(“Accordingly, the amendments at issue do not
lower Kelley's applicable guideline range, because the
statutory mandatory minimum term of imprisonment trumps his
otherwise applicable guideline range.”); United
States v. McClain, 691 F.3d 774 (6th Cir.
Defendant suggests that the commutation of his sentence on
Count One to 240 months makes him eligible for a further
sentence reduction. The commutation did not lower the
Defendant's sentencing range, however, as required for
eligibility for a sentence reduction under Section
3582(c)(2). See United States v. Buenrostro, 2016 WL
6895445 (E.D. Ca. Nov. 23, 2016)(Commutation of
defendant's mandatory life sentence under 21 U.S.C.
§ 841 does not confer eligibility for Section 3582(c)(2)
relief). See also United States v. Surratt, 855 F.3d
218, 219 (4th Cir. 2017) (Request for sentence reduction held
to be moot after commutation of the defendant's sentence
by President Obama). For these reasons, 18 U.S.C. §
3582(c)(2) does not permit a reduction in the Defendant's
sentence, and the Defendant's request for a sentence
reduction is DENIED.