The 4th Circuit says that two defendants whose convictions for crack cocaine trafficking required mandatory minimum sentences of 240 months’ imprisonment under 21 U.S.C. § 841(b)(1)(A) are not eligible for a sentence reduction under Amendment 706 because their sentences were “based on” the statutorily mandated minimum sentencing provisions, and not “based on a sentencing range” lowered by Amendment 706.
In furtherance of its conclusion that the “100-to-1 drug quantity ratio” of cocaine powder to crack cocaine used in the federal sentencing guidelines “significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere,” the U.S. Sentencing Commission adopted Amendment 706 to the guidelines, effective Nov. 1, 2007. Amendment 706 amended USSG § 2D1.1, lowering by two levels the offense levels associated with each quantity of crack cocaine, and effective, March 3, 2008, the change was made retroactive.
Amendment 706 has now generated thousands of motions to reduce sentences, filed under 18 U.S.C. § 3582(c)(2) (authorizing the modification of a sentence “based on” a sentencing range that has subsequently been lowered by the commission). The two appeals here come to us from district court orders denying two such motions. These two defendants’ convictions for crack cocaine trafficking required mandatory minimum sentences of 240 months’ imprisonment under 21 U.S.C. § 841(b)(1)(A), but in each case the district court reduced the sentence under 18 U.S.C. § 3553(e) – the first defendant’s sentence to 100 months’ imprisonment and the second defendant’s sentence to 108 months’ imprisonment – to reflect the defendant’s substantial assistance to the government. Each defendant now, through his § 3582(c)(2) motion, requests a proportionate reduction of his sentence to reflect the lowering of sentences for crack cocaine offenses provided by Amendment 706.
We conclude that defendants’ sentences in these appeals were “based on” the statutorily mandated minimum sentence, not “based on a sentencing range” lowered by Amendment 706, and were reduced by the district court under 18 U.S.C. § 3553(e) only for each defendants’ substantial assistance to the government, not because of the application of any “guideline range” lowered by Amendment 706. Because Amendment 706 lowered only the crack cocaine offense levels in § 2D1.1 of the sentencing guidelines, it did not have the effect of lowering the defendants’ applicable sentencing ranges.
Denial of the motions for sentence reductions is affirmed.
U.S. v. Hood (Niemeyer, J.) No. 08-7019, Feb. 20, 2009; USDC at Statesville, N.C. (Voorhees) Matthew Segal for appellants; Amy E. Ray, U.S. Att’y Office, for appellee. VLW 009-2-042, 21 pp.