Opinion
CR-1-96-050
09-03-2013
UNITED STATES OF AMERICA, Plaintiff, v. ALVIN CORDELL, Defendant.
ORDER
This matter is before the Court upon defendant's Pro Se Motion to Reduce Sentence Pursuant to 18 U.S.C. Section 3582( c)(2) (doc. no.223), the Response by the United States (doc. no. 228), and defendant's Reply thereto (doc. no. 229); and defendant's Motion for Emergency Relief (doc. no. 230). In his pro se Motion, defendant argues that he should receive a two-level reduction under Amendment 706 to U.S.S.G. § 2D 1.1 made retroactive by Amendment 712 to U.S.S.G. § 1B1.10, which went into effect on March 3, 2008, and the Fair Sentencing Act of 2010.
Pursuant to Guideline Amendment 712, the United States Sentencing Commission authorized the retroactive application of Guideline Amendment 706 to all defendants who met certain eligibility criteria.
The United States Sentencing Commission has amended the United States Sentencing Guidelines to reduce the disparity between sentences for offenses arising out of powder and crack cocaine. Dorseyv. United States, — U.S. —, —, 132 S.Ct. 2321, 2329 (2012); Dillon v. United States, — U.S. —, 130 S.Ct. 2683, 2688 (2010). In 2007, the Commission issued Amendment 706, which reduced the base offense level for most crack cocaine offenses by two. Dillon, 130 S.Ct. at 2688. Soon thereafter, the Commission adopted Amendment 712, which applied Amendment 706 retroactively. Id. On August 3, 2010, Congress passed the Fair Sentencing Act ("FSA"), which increased the amount of crack cocaine necessary to trigger the mandatory minimums for trafficking offenses. Dorsey, 132 S.Ct. at 2329. The FSA instructed the Commission to amend the guidelines as necessary to achieve consistency with other guideline provisions and applicable law. Id. Accordingly, the Commission passed emergency amendments to the guidelines, which became permanent on November 1, 2011. Id. Amendment 750 reduced the base offense levels in U.S.S.G. § 2D 1.1(c) applicable to crack cocaine offenses, and Amendment 759 made Amendment 750 retroactive. United States v. Jackson, 678 F.3d 442, 443 (6th Cir.2012).
I. Procedural and factual background
On April 17, 1996, defendant was charged in two counts of a three-count Indictment. In Count One, he was charged with conspiracy to distribute and possess with intent to distribute marijuana and cocaine. In Count Two, he was charged with attempt to possess with intent to distribute cocaine base in excess of fifty grams.
Prior to trial, the government filed a sentencing enhancement pursuant to 21 U.S.C.§ 851 (doc. no. 56), the effect of which was to raise the statutory mandatory minimum penalty defendant faced to life imprisonment because he had two prior felony drug convictions pursuant to 21 U.S.C.§ 841(b)(1)(A)(iii). On September 11, 1996, Mr. Cordell was convicted of both counts following a seven-day jury trial (doc. no. 69).
The Court sentenced the defendant on May 5, 1997 (doc. no. 123). The Court first discussed the enhancement under Title 21 U.S.C. § 851. The Court analyzed the convictions which formed the basis of the enhancement. The Court found (1) the government had established there were two prior felony convictions, (2) the sentencing enhancement sought by the government pursuant to Title 21 U.S.C. §§ 841(b)(1)(A) and 851 prior to trial was appropriate, (3) the United States met its obligation under § 841(b)(1)(A)(ii) and (iii), and (4) the defendant was subject to the mandatory sentence of life without supervised release (Transcript, page 53).
After finding that the guideline determinations did not affect the sentence, the Court addressed the recommendations in the presentence report in light of the objections to the presentence report, concluding the defendant was responsible for 50 to 100 kilograms of cocaine and 504 grams of crack cocaine in Count One and for 249 grams of crack cocaine in Count Two.
The Court found the applicable base offense level was 36. The Court accepted the recommendation that a 4-level enhancement for role in the offense was appropriate based on the testimony at trial. Although his criminal history points placed him in a criminal history category of IV, the Court found the defendant qualified as a career criminal, which would raise his criminal history category to VI. The Court found (1) the offense level of 42 recommended in the presentence report was not appropriate, (2) the total offense level should be 40, and (3) the criminal history category should be VI. Based on these findings, the Court noted that the guideline sentencing range was 360 months to life regardless whether the criminal history category was IV or VI and if the sentences were imposed pursuant to the Sentencing Guidelines, the range would have been 360 months to life imprisonment.
The Court adopted the sentence of life imprisonment recommended in the presentence report finding it to be appropriate because it was the statutory mandatory minimum. The Court stated during the sentencing hearing (Transcript, page 56):
As I've stated, that it's the opinion of the Court under the mandate of Congress that the report is correct in its conclusion that the Court has no choice but to impose a mandatory life sentence on each count of conviction.
The Court sentenced the defendant to a term of life imprisonment on each of Counts One and Two, to run concurrently. The Court stated (Transcript, page 58):
And it should be carefully noted that the Court has made specific findings and has those - any facts other than the specific findings that appear in the report or the conclusions in the report are not considered for the purposes of sentencing in this case. That the reasons for sentencing in this case results from what the Court considers its obligation to the law under 21 United States Code Section 841 and 21 United States Code Section 851.The Court further stated (Transcript, page 60):
We have gone through an extensive hearing here today and as a result, it is now my duty to sentence you pursuant to the statutory sentence provided in 21 United States Code 841 as dictated by Section 851 as to each count.In its Sentencing Memorandum Order (doc. no. 123, p. 4), the Court memorializes that "The Sentencing Guidelines do not control the sentence in this case." A Notice of Appeal was filed on the same day (doc. no. 124). The United States Court of Appeals for the Sixth Circuit affirmed the defendant's convictions and sentence, stating "It is thus clear that these two convictions are separate drug trafficking offenses for the purposes of 841(b)(1)(A) and the district court was obligated to sentence Cordell to life imprisonment." United States v. Cordell, l60 F.3d 1071, 1076 (6th Cir. 1988).
Defendant's filed the instant Pro Se motion seeking a reduction pursuant to the new crack reduction Amendment on April 2, 2012 (doc. no. 223). The Court referred the matter to the United States Probation Department for analysis and recommendation (doc. no. 224). The government filed a response (doc. no. 228). Defendant filed a Pro Se Reply (doc. no. 229).
In its Post-sentencing Addendum, the Probation Officer states that "in accordance with Provision III.B of General Order No. 08-03, Procedures for Implementation of the Retroactive Amendment to the Sentencing Guidelines, Reducing the 100-1 Disparity Between Cocaine Base (Crack Cocaine) and Powder Cocaine, this case as been identified as an Agreed Disposition Case. The parties agreed the defendant is not eligible for a reduced sentence as he is subject to a mandatory life term on each count of conviction pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 851 because he has two prior drug trafficking convictions.
Defendant argues the Court has the authority to reduce his sentence because the "record demonstrates that both the Court and the PSI used the U.S.S.G. § 2D1.1 Guidelines applicable to Cordell's relevant conduct as part of the analytic framework that went into fashioning Cordell's sentence in addition to the operation of statute 21 U.S.C. § 841(b)(1)(A)". He contends his sentence was based on U.S.S.G. § 2D1.1, a sentencing range that has subsequently been lowered by the sentencing Commission pursuant to § 994(o). He argues that all sentences involving crack offenses were "based on" the crack guideline because those ranges represented the starting point of the guideline analysis.
Defendant urges the Court to apply the reasoning in United States v. Miller, 2010 WL 3119768 (D.Minn. Aug. 6, 2010) to allow the Court to reduce his offense level below the mandatory minimum and to recalculate his criminal history category. The Miller court found that on the specific facts of that case, it would grant a reduction of defendant's life sentence, even though it was mandated by statute.
Defendant argues that Freeman v. United States, - U.S. -, 131 S.Ct. 2685 (2011) supports his position. In that case, the United States Supreme Court concluded that defendants who enter into 11(c)(1)(C) plea agreements that specify a particular sentence as a condition of the guilty plea may be eligible for relief under 3582( c)(2).
Mr. Cordell urges the Court to apply the standards and factors in 18 U.S.C.§ 3553(a) and his rehabilitation efforts in reducing his sentence. He cites Pepper v. United States, - U.S. -, 131 S.Ct. 1229 (2011) for the proposition that the Court may do so when determining his "new sentence".
Finally, in his Reply, defendant contends that "in light of the position taken in Dorsey v.United States, - U.S. - ,132 S. Ct. 2321 (2012) and United States v.Young, 247 F.3d 1247 (D.C. Cir. 2001), Congress intended the Fair Sentencing Act to apply to him". He argues that the Dorsey court found that "the saving clause does not apply to the FSA". As a result, he contends that the FSA must be applied in a motion to reduce sentence under 18 U.S.C. § 3582(c)(2).
The government argues that the defendant is not eligible for the retroactive amendments to the crack cocaine guidelines. It argues that defendant fails to satisfy the criteria of 18 U.S.C. § 3553(e) because he was sentenced as a career offender, his range is not changed, and, most significantly, he faced a mandatory minimum sentence of life imprisonment higher than his sentencing range. The government argues that a reduction is possible only when the Guideline provision relied upon at sentencing has been amended and specifically made retroactive by the Sentencing Commission. The government argues that were the Court to allow a 2-level reduction, his range would remain life making him ineligible.
II. Analysis
A district court may modify a defendant's sentence only as provided by statute. United States v. Washington, 584 F.3d 693, 695 (6th Cir.2009). As a general rule, a district court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582( c); United States v. Moody, 2013 WL 2096933 (6th Cir.May 15, 2013); Dillon v. United States, - U.S. -, 130 S.Ct. 2683 (2010). Congress has provided an exception "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)." 18 U.S.C. § 3582(c)(2).
In 28 U.S.C. § 994(o), Congress mandated that the Sentencing Commission "periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section."
In those circumstances, § 3582( c)(2) authorizes a court to reduce the term of imprisonment "if such reduction is consistent with" applicable Commission policy statements.
The applicable policy statement, U.S.S.G. § 1B1.10, amended March 3, 2008, provides in relevant part:
(a) Authority.
(1) In General.-In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582( c)(2). As required by 18 U.S.C. § 3582( c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
(2) Exclusions. -A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582( c)(2) if-
(A) none of the amendments listed in subsection (c) is applicable to the defendant; or
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range.
(3) Limitation.-Consistent with subsection (b), proceedings under 18 U.S.C.§ 3582 (c)(2) and this policy statement do not constitute a full resentencing of the defendant.
U.S.S.G. § 1B1.10 describes the appropriate method of calculating the amended guideline range:
[T]he court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.Subsection (c) of the policy statement lists the guideline amendments to be given retroactive effect. U.S.S.G. § 1 B1.10(c).
The transcript of the Sentencing Hearing is clear. During the sentencing hearing, the Court specifically stated that it was sentencing the defendant pursuant to the statutory mandatory minimum of life imprisonment pursuant to 21 U.S.C. § 851. Defendant's sentence was, therefore, not based on a guideline that was subsequently lowered by the Amendment. See, United States v. Stanley, 2012 WL 4014932 (6th Cir. Sept. 13, 2012).
In United States v. Williams, 512 Fed. Appx. 594 (6th Cir. 2013) the United States Court of Appeals for the Sixth Circuit found Williams, who was subject to a mandatory minimum sentence that exceeded the guideline range produced by his total offense level and criminal history category, ineligible for a sentence reduction pursuant to 18 U.S.C.§ 3582( c)(2). Williams had been convicted of a prior felony drug offense, which caused the government to file a penalty enhancement under 21 U.S.C. § 851(a). The basis for his penalty enhancement was 21 U.S.C. § 841(b)(1)(A), resulting in a mandatory minimum term of imprisonment of twenty years. The court found that Williams' sentence was not based on a sentencing range that had been lowered, but the mandatory minimum sentence. The court explained, at 597-598
To determine the basis for the term of imprisonment, this court evaluates "what the district court actually said and did at the original sentencing." United States v. Hameed, 614 F.3d 259, 264 (6th Cir. 2010) (quoting United States v. Hargrove, 628 F.Supp.2d 241, 244 (D.Mass. 2009).The Williams court noted the Hameed court's statement that "a district judge's mere calculation of the sentencing range under § 2D1.1 does not render a defendant's sentence 'based on' the crack guidelines range if that range is subsequently trumped by another provision of the guidelines." Id. at 599. The court recognized the FSA did not retroactively amend the statutory mandatory minimum sentence that applied to Williams, 21 U.S.C. § 841(b)(1). Id. at 597 (citing United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010)). The Williams court concluded that "where a mandatory minimum sentence applies that exceeds the otherwise applicable guideline range, the mandatory minimum sentence becomes the applicable guideline range. The court added:
Our conclusion is consistent with decisions by other circuits holding that a defendant was ineligible for a sentence reduction based on Amendment 706 where the defendant was subject to a mandatory minimum sentence that exceeded the otherwise applicable guideline range. See United States v. Roa-Medina, 607 F.3d 255 (1st Cir.2010); United States v. Williams, 551 F.3d 182 (2d Cir.2009); United States v. Doe, 564 F.3d 305 (3d Cir.2009); United States v. Hood, 556 F.3d 226 (4th Cir.2009); United States v. Jackson, 577 F.3d 1032 (9th Cir.2009); United States v. Poole, 550 F.3d 676 (7th Cir.2008); United States v. Johnson, 517 F.3d 1020 (8th Cir.2008).Id. at 601.
In United States v. Miller, 2010 WL 3119768 (D.Minn Aug. 6, 2010), the defendant was sentenced to two life sentences based on multiple prior felony convictions. The court noted cases dictating that a sentence imposed pursuant to a statutory minimum sentence remains unaffected by the recent amendments to the crack quantity guidelines and emphasized that it "does not lightly stray from the bounds of these decisions". Id. at *2. It explained, "This case, however, represents a singular and unique exception." Id. The Court stated, "[h]ere, the underlying guideline calculation influenced the Court's conclusion that defendant qualified as a career offender in imposing a statutory life sentence." Id. The Miller court specifically stated:
The Court did not simply calculate defendant's guidelines for comparison - the offense conduct level was a dominant factor in the actual decision to find the career offender category and statutory life sentence applicable.Id. The court found it appropriate to modify his sentence because the original sentence did not consider the crack/powder disparity. The court noted his rehabilitative efforts in deciding to reduce his sentence and the disparity of the guidelines section it had relied upon.
In Freeman v. United States, - U.S. -, 131 S.Ct. 2685 (2011), the Court concluded that defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence as a condition of the guilty plea may be eligible for relief under § 3582( c)(2). The plea agreement in the case specifically stated that the parties had reviewed the sentencing guidelines and the defendant agreed to have his sentence determined pursuant to the Sentencing Guidelines. Id. at 2691. The recommended sentence thus corresponded with the minimum sentence suggested by the Guidelines. "To ask whether a particular term of imprisonment is 'based on' a Guidelines sentencing range is to ask whether that range serves as the basis or foundation for the term of imprisonment." Id., at 2695 (Sotomayor, J., concurring).
First of all, Mr. Cordell did not enter into a Rule 11(c)(1) C) plea agreement. Defendant cannot succeed under the Freeman case because he was sentenced pursuant to the statutory minimum based on his two prior felonies, not on the sections changed by the Fair Sentencing Act. It is obvious from the record that the applicable sentencing range was not a relevant part of the framework for determining his sentence.
In Dorsey v. United States, - U.S. -, 132 S.Ct. 2321 (2012), the United States Supreme Court held that the more lenient penalties of the Fair Sentencing Act, which reduced the crack-to-powder cocaine disparity, applied to those offenders whose crimes preceded the effective date of the Act, but who were sentenced after that date. United States v. Boyd, 478 Fed.Appx. 323, 324 (6th Cir.2012).
Mr. Cordell's argument under Dorsey fails because the court explicitly held that the Act's new lower mandatory minimums apply only "to the post-Act sentencing of pre-Act offenders." 132 S.Ct. at 2335. Mr. Cordell's offense conduct did occur pre-Act, but so did his sentencing. He therefore explicitly does not fall within the category of offenders contemplated by Dorsey. See, e.g.,United States v. Hollins, 2012 WL 5477119, at *2 (6th Cir.Nov.13, 2012). (The FSA does not apply to Hollins because he was sentenced prior to the statute's effective date.); United States v. Mundy, 2012 WL 5200363, at *1 (6th Cir. Oct.22, 2012).
In Dillon v. United States, - U.S. —, 130 S.Ct. 2683 (2010), the United States Supreme Court addressed defendant's arguments that the Court should reconsider his entire sentence. The Dillon court held that the Supreme Court's holdings in United States v. Booker 543 U.S.220 (2005) do not apply to §3582( c)(2) proceedings and do not require treating § 1B1.10(b) as advisory. Finding that § 3582( c)(2) authorizes only a limited adjustment to an otherwise final sentence, the Court found the argument that Booker's remedial opinion nonetheless requires the Guidelines to be treated as advisory in such proceedings is unpersuasive given that proceedings under § 3582(c)(2) are readily distinguishable from other sentencing proceedings. The Supreme Court also rejected Dillon's argument that the District Court should have corrected other mistakes in his original sentence, namely, a Booker error resulting from the initial sentencing court's treatment of the Guidelines as mandatory and an alleged error in the calculation of his criminal-history category. The Supreme Court explained that the Sentencing Commission sought to alleviate the disparity produced by the 100-to-1 ratio selected by Congress in setting mandatory minimum sentences in the Anti-Drug Abuse Act of 1986, 100 Stat.3207. associated with the quantity of crack cocaine. See USSG Supp.App. C, Amdt. 706 (effective Nov. 1, 2007)
The Supreme Court explained that the statute establishes a two-step inquiry. A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a). Id. at 2691. It stated:
Following this two-step approach, a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense. At step one, § 3582(c)(2) requires the court to follow the Commission's instructions in § IB1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized. Specifically, § IB1.10(b)(1) requires the court to begin by "determin[ing] the amended guideline range that would have been applicable to the defendant" had the relevant amendment been in effect at the time of the initial
sentencing. "In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." Id.
In rejecting the notion that § 3582 authorizes a resentencing, the Supreme Court also rejected the argument that any mistakes made at the original sentencing should be corrected at this stage. The Dillon court stated:
The relevant policy statement instructs that a court proceeding under § 3582(c)(2) "shall substitute " the amended Guidelines range for the initial range "and shall leave all other guideline application decisions unaffected." § IB1.10(b)(1). Because the aspects of his sentence that Dillon seeks to correct were not affected by the Commission's amendment to § 2D1.1, they are outside the scope of the proceeding authorized by § 3582(c)(2), and the District Court properly declined to address them.Id. at 2694.
The United States Court of Appeals for the Sixth Circuit has embraced the ruling in Dillon. In United States v. Horn, 612 F.3d 524 (6th Cir. 2010), the Court of Appeals notes that the holding in Dillon ratifies the Sixth Circuit's pre-Dillon holding in United States v. Washington, 584 F.3d 693, 700 (6th Cir.2009) which rejected the contention that the limitations imposed by § 3582( c)(2) are advisory in light of Booker.
Applying the dictates of the Dillon court to this case, the Court must first determine the eligibility of the defendant to a reduction. Pursuant to Dillon, the Court is not free to reject any of the terms of U.S.S.G. § 1B1.10. Pursuant to U.S.S.G. § IB1.10(a)(2)(B), a reduction is not authorized if the amendment does not have the effect of lowering the defendant's guideline range. At the original sentencing, the Court determined that defendant qualified as a career offender pursuant to U.S.S.G. § 4B1.1, the defendant's offense level was 40, and his criminal history category was VI. Defendant's sentencing guideline range was 360 months to life. The application of the November 1, 2007 Amendment would result in the range of 360 months to life. Mr. Cordell's sentence would not be reduced even if it was based on the Sentencing Guidelines. It is apparent from the statements made by the Court that no guideline section had any effect on the sentence. Any discussion of the guidelines, as explained by the Court on several occasions, were in an effort to make a complete record concerning all facets of the case.
On March 17, 2013, a panel of the United States Court of Appeals for the Sixth Circuit decided United States v.Blewett, 719 F.3d 482 (6th Cir. 2013), which was recently vacated. The court explained,
This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to "restore fairness to Federal cocaine sentencing" laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.
In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced
under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Boiling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, "persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants." The Collapse of American Criminal Justice 184 (2011). He recommended that we "redress that discrimination" with "the underused concept of 'equal protection of the laws.'" Id. at 297.
In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.
Mr. Cordell receives no relief under the reasoning of Blewett, in which the Court reasoned that the FSA should apply to all who qualify under its provisions. Mr. Cordell does not. In Blewett, the court found that the mandatory minimums based on the quantity of cocaine base are impermissible. It condemned and changed the mandatory minimums it found were unjustly based on a quantity of cocaine base It's concern, and that of the Fair Sentencing Act, is the "racially discriminatory impact of the 100:1 sentencing scheme". It did not discuss, condemn, or change the statutory mandatory minimum sentences. Mr. Cordell's statutory mandatory minimum sentence is based on his two prior felonies. It is not based on a quantity of cocaine base. The Fair Sentencing Act simply did not address mandatory minimum sentences based on prior felonies pursuant to Title 21 U.S.C. §§ 841(b)(1)(A) and 851.
Recently, a panel of the Sixth Circuit decided United States v. Johnson, No. 12-3811 (6th Cir., Aug. 20, 2013) in which the defendant pleaded guilty to two counts of distribution of over fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). His plea agreement specified that his offense involved 109 grams of cocaine base. The plea agreement stated, "The parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory Sentencing Guidelines." He was subject to a statutory minimum sentence of 240 months of imprisonment, however, the government moved for a downward departure and the district court granted further reductions for defendant's acceptance of responsibility and timely indication of his intent to plead guilty.
The Johnson court pointed out that the Fair Sentencing Act was passed to restore fairness to Federal cocaine sentencing by reducing from 100:1 to 18:1 the ratio between the quantities of powder versus cocaine base that trigger the same statutory minimum sentences ("cocaine ratios") through amendment of 21 U.S.C. § 841(b)(1) and the Sentencing guidelines penalties for cocaine base offenses.
In Johnson, the Sixth Circuit found a crack offender who is otherwise subject to a mandatory minimum but receives a lower sentence because he rendered substantial assistance to the government remains eligible for a sentence reduction under § 3582( c)(2). The Johnson case illustrates the difference between a case in which a reduction pursuant to § 3582( c)(2) is appropriate and Mr. Cordell's case in which the government did not move to depart below the statutory minimum. Unlike Johnson, Mr. Cordell's original sentence was not based on an advisory range that was lowered by the Amendment, and, most importantly, Cordell was facing a mandatory minimum without the benefit of a substantial-assistance motion.
III. Conclusion
The Court finds that Mr. Cordell is not eligible for a reduction of his sentence because he does not meet the criteria contained in 18 U.S.C. Section § 3582 (c)(2) and U.S.S.G. § IB1.10.
The Court DENIES Mr. Cordell's Motion to Reduce (doc. no. 223). His Motion for Emergency Relief (doc. no. 230) is rendered MOOT and DENIED.
IT IS SO ORDERED.
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Herman J. Weber
Senior United States District Judge