The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant Marvin Ragland's pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) ("Mot."). The Federal Public Defender's Office entered an appearance on Mr. Ragland's behalf and filed a supplement to his pro se motion ("Supp."). The government filed a response to the motion ("Opp."), and Mr. Ragland's counsel filed a reply ("Rep."). The Court heard oral argument on June 27, 2008.
On August 28, 1998, Mr. Ragland pled guilty to one count of a 37-count indictment, conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base ("crack cocaine") in violation of 21 U.S.C. § 846.*fn1 In his written plea agreement, Mr. Ragland acknowledged that he was subject to a ten-year mandatory minimum sentence and was accountable for more than 150 grams but less than 500 grams of cocaine base. See July 22, 1998 Plea Agreement.*fn2 As defense counsel accurately summarizes:
The Court sentenced Mr. Ragland for this offense on April 16, 1999. At that time, the Court found that although Mr. Ragland was a career offender within the meaning of § 4B1.1 of the United States Sentencing Guidelines, treating him as such would "overstate his criminal history and his likelihood of recidivism and that his criminal past is 'significantly less serious' than that of a typical career offender." Statement of Reasons, Attachment at 2. For these reasons, pursuant to § 4A1.3, the Court departed from the sentencing range applicable under the career offender provision, to the otherwise applicable range. Id. The Court found that absent the career offender provision the applicable sentencing range was 188 to 235 months (offense level 31, criminal history category VI). With these findings, the minimum sentence the law would allow the court to impose at the time of Mr. Ragland's original sentencing was a sentence of 188 months incarceration, and the Court imposed this then-mandatory sentence.
Under Amendment 706 to the Sentencing Guidelines, which was made retroactive by Amendment 711 effective March 3, 2008, Mr. Ragland's offense level is a 29 and, at Offense Level 29, Criminal History Category VI, his new Guidelines range is 151 to 188 months. The United States does not oppose a reduction in Mr. Ragland's sentence to 151 months. Mr. Ragland, however, asks the Court to further reduce his sentence, considering all relevant sentencing factors under 18 U.S.C. § 3553(a), and impose a new sentence of 120 months -- the statutory mandatory minimum sentence for the crime to which he pled guilty -- by varying from the new Guidelines range under United States v. Booker, 543 U.S. 220 (2005). The United States opposes this request for a further reduction, and argues that the Court has no authority to reduce Mr. Ragland's sentence below 151 months, the bottom of his amended Guidelines range. The question presented is whether the Court may vary from an amended Guidelines sentencing range under Booker when granting a motion for a reduction in sentence under 18 U.S.C. § 3582(c)(2).
28 U.S.C. § 994(o) provides that the "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." 28 U.S.C. § 994(o). 28 U.S.C. § 994(u) provides: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentence of prisoners serving terms of imprisonment for the offense may be reduced."
18 U.S.C. § 3582 provides that the Court "may not modify a term of imprisonment once it has been imposed" with three exceptions, one of which reads:
[I]n 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 Sentencing Commission.
18 U.S.C. § 3582(c)(2).*fn3 It is within the Court's discretion whether to grant a Section 3582 motion -- that is, even if a defendant's Guidelines range has been lowered, the Court, in its discretion, may deny the motion.
Section 3582 is deemed in some Circuits to be jurisdictional -- that is to say, a district court does not have jurisdiction to modify a sentence other than in compliance with this provision. See, e.g., United States v. Julien, 550 F. Supp. 2d 138, 139 (D. Me. 2008) (noting that "this statutory exception to the final judgment rule limits the Court to sentence reductions that are 'consistent with applicable policy statements issued by the Sentencing Commission.' 18 U.S.C. § 3582(c)(2). In the Court's assessment, this language regarding sentence reductions amounts to a limit on the Court's jurisdiction.") (citations omitted); see also United States v. Regalado, 518 F.3d 143, 150-51 (2d Cir. 2008) (referring to Section 3582 as jurisdictional). The D.C. Circuit, however, has "question[ed]" such a reading, and has expressly left open the question of whether Section 3582 is jurisdictional -- or, rather, is a "claims-processing rule." United States v. Smith, 467 F.3d 785, 788 (D.C. Cir. 2006).
The applicable policy statement issued by the Sentencing Commission with respect to the retroactive application of reduced Sentencing Guidelines is found in Section 1B1.10 of the United States Sentencing Guidelines. The Sentencing Commission lists those amendments that it intends to have retroactive application in subsection (c). Section 1B1.10(a)(2)(B) notes that if a retroactively applicable amendment "does not have the effect of lowering the defendant's applicable guideline range" then a ...