United States v. Lipkins

Full title: UNITED STATES OF AMERICA v ADRIAN DE JUAN LIPKINS

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

Date published: Nov 28, 2011

4:05-CR-00329-01-JLH (E.D. Ark. Nov. 28, 2011)

Opinion

4:05-CR-00329-01-JLH.

November 28, 2011.

ORDER

LEON HOLMES, UNITED STATES DISTRICT JUDGE.

Pending is Defendant's Motion to Modify Sentence Under 18 U.S.C. § 3582 (Doc. No. 41), based on the retroactive application of the United States Sentencing Commission's crack cocaine penalty guideline reduction.

Only those persons currently serving a sentence determined or affected by a sentencing range calculated using the drug quantity table in U.S.S.G. § 2D1.1 are potentially eligible for a reduction. On October 3, 2006, Defendant was sentenced to 262 months in prison.¹ His sentence was based on the "applicable guideline range" for a "career offender." For reasons unrelated to the drug quantity table, Defendant's sentence was reduced to 174 months on September 25, 2009.²

1 Doc. Nos. 27, 28.

2 Doc. No. 31.

Since Defendant's base offense level and sentence were not determined by the drug quantity table, but rather by Defendant's status as a "career offender" under U.S.S.G. § 4B1.1, the amended crack cocaine sentencing guidelines do not apply.³ Defendant acknowledges that his sentence was based on his status as a "career offender," but asks that the "previous sentence of 174 months imprisonment imposed be reduced to reflect the amendment to the crack cocaine guidelines."⁴ Defendant cited no law to support his request for a reduction, despite his status as a "career offender."

3 See the United States Sentencing Commission's "Reader-Friendly" Version of the Final 2011 Guideline Amendment Implementing the Fair Sentencing Act, available at http://www.ussc.gov/Meetings_and_Rulemaking/Materials_on_Federal_Cocaine_Offenses/20110428_RF _Amendments_Pages.pdf

4 Doc. No. 41.

To the extent that Defendant is arguing that a subsequent Rule 35 reduction negates his status as a "career offender" and makes him eligible for a reduction under the new crack cocaine guidelines, the argument is without merit. A Rule 35 reduction does not change the fact that Defendant's "applicable guideline range" was based on his status as a "career offender."⁵ The subsequent reduction simply lowered the originally imposed sentenced, which, again, was based on Defendant's "career offender" status.

5 See United States v. Tolliver, 570 F.3d 1062, 1066 (8th Cir. 2009) (finding that a defendant who was sentenced as a career offender, but later received a downward departure, was not entitled to a sentencing reduction under the retroactive crack guidelines) and United States v. King, 360 Fed. Appx. 714 (8th Cir. 2010) (noting that a "Rule 35 reduction did not affect how Amendment 706 applied."). See also United States v. Guyton, 636 F.3d 316, 320 (7th Cir. 2011) (holding that "a career offender whose imprisonment term falls below his career offender range only by virtue of a departure under Part 5H or 5K cannot received a reduction under section 3582(c)(2) unless the Sentencing Commission retroactively amends the career offender guideline.").

Accordingly, Defendant's Motion to Modify Sentence Under 18 U.S.C. § 3582 (Doc. No. 41) is DENIED.

IT IS SO ORDERED.