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UNITED STATES v. WASHINGTON

July 8, 1996

UNITED STATES OF AMERICA
v.
ANTONIO WASHINGTON, Defendant.



The opinion of the court was delivered by: HARRIS

 Before the Court is petitioner's motion for reduction or modification of his sentence pursuant to 18 U.S.C. § 3582(c), based upon a recent amendment to the United States Sentencing Guidelines. Upon consideration of the entire record and the relevant authorities, the Court finds U.S.S.G. Amendment 506 to be inconsistent with the Congressional mandate of 28 U.S.C. § 994(h), and therefore invalid as a matter of law. Accordingly, petitioner's motion to modify his sentence is denied.

 Background

 In 1990 a jury found petitioner and his co-defendant, Carl Gedde, guilty of distribution of a mixture containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). Petitioner appealed his conviction; it was affirmed by the United States Court of Appeals for the District of Columbia Circuit. United States v. Washington, 297 U.S. App. D.C. 73, 969 F.2d 1073 (D.C. Cir. 1992), cert. denied, 507 U.S. 922, 113 S. Ct. 1287, 122 L. Ed. 2d 679 (1993). On April 20, 1994, petitioner filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. This Court denied petitioner's motion by an Order entered on May 3, 1994. Petitioner appealed from that Order, but after filing this motion, he withdrew his appeal.

 When petitioner was sentenced, he was subject to an enhanced penalty because he had several prior felony drug convictions. See 21 U.S.C. § 841(b)(1)(C) (providing for maximum penalty of 30, rather than 20, years, if a defendant had previously been convicted of a felony drug offense). Additionally, because (1) petitioner was over 18 years of age, (2) the instant offense was a felony drug offense, and (3) petitioner had at least two prior felony drug convictions, he was categorized as a "career offender" under the Sentencing Guidelines, independent of any enhancement. U.S.S.G. § 4B1.1 (1994).

 U.S.S.G. § 4B1.1 instructs the sentencing judge to set the offense level for career offenders according to the table provided in § 4B1.1, and states that career offenders will in every case be considered to have a criminal history category of VI. U.S.S.G. 4B1.1. The table in § 4B1.1 designates an offense level for each "offense statutory maximum." When petitioner was sentenced in 1990, "offense statutory maximum" was defined in the commentary to § 4B1.1 as "the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense." Id. at application note 2.

 In sentencing petitioner, it was determined that the offense statutory maximum was not more than 30 years, pursuant to the statutory enhancement given under § 841(b)(1)(C). Under § 4B1.1, petitioner was therefore determined to have an offense level of 34 and a criminal history category of VI, giving a guideline range of 262-327 months. Petitioner was sentenced to 262 months, the minimum allowed under the applicable guidelines. *fn1" If the statutory enhancement under § 841(b)(1)(C) had not been taken into account under the Guidelines, petitioner would have faced an "offense statutory maximum" of 20 years, giving him an offense level of 32, and yielding a guideline range of 210-262 months.

 Effective November 1, 1994, the United States Sentencing Commission promulgated Amendment 506 to the Sentencing Guidelines. The amendment added explicit commentary to U.S.S.G. § 4B1.1, directing sentencing judges not to consider any statutory enhancement in determining the "offense statutory maximum" for career offenders. U.S.S.G. § 4B1.1, comment. (n.2.) (Nov. 1993). The Sentencing Commission specifically cited to such enhancements as those included in 21 U.S.C. §§ 841(b)(1)(A), (b)(1)(B), (b)(1)(C), and (b)(1)(D). Id. Petitioner, as noted, was subject to an enhancement pursuant to 21 U.S.C. § 841(b)(1)(C). The government concedes that the Commission directed that the amendment be applied retroactively.

 Petitioner relies on the retroactive change in the method of determining offense levels for career offenders in seeking modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). Under § 3582(c)(2), a court is given discretion to reduce a defendant's sentence when the sentencing range used was subsequently lowered by the Sentencing Commission, provided the court is satisfied that a reduction would still carry out the purposes of sentencing articulated in 18 U.S.C. § 3553(a). 18 U.S.C. § 3582(c)(2).

 The government contends that a lower sentence is unavailable in this case. The government argues that Amendment 506 is invalid, because it directly contradicts the plain language of Congress, as set forth in 28 U.S.C. § 994(h). See Stinson v. United States, 508 U.S. 36, 37, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993). The government further argues that lowering the offense level would thwart congressional intent to give drug offenders near-maximum sentences.

 Discussion

 The duties of the Sentencing Commission are set forth in 28 U.S.C. § 994. Section 994(h) provides that:

 
The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and [has been convicted of a felony that is either a violent crime or a specified ...

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