United States District Court, District of Columbia
Scharn Robinson, U.S. Attorney's Office, Washington, DC, for United States of America.
Carlos J. Vanegas, Federal Public Defender, Washington, DC, for Defendant.
ROYCE C. LAMBERTH, Chief Judge.
Before the Court is defendant Melquan Ali's Motion  to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2). Upon consideration of defendant's Motion , the Probation Office's memorandum , the government's Opposition , defendant's Reply , the government's Sur-Reply , the defendant's Response  to the Government's Sur-Reply, the entire record herein, the applicable law, and for the reasons set forth below, defendant's Motion will be granted in part and denied in part. Defendant's term of imprisonment will be reduced from 87 months to 60 months, but all other relief will be denied.
On November 25, 2008, a grand jury returned a five-count indictment in this case. Presentence Investigation Report ¶ 1, 2d Revision May 26, 2010, ECF No. 30 (" PSR" ). On February 26, 2009, defendant pleaded guilty to Count 1, Unlawful Possession with Intent to Distribute 5 Grams or More of Cocaine Base (" crack" ) in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii), and Count 5, Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year in violation of
18 U.S.C. § 922(g)(1), of the indictment. Id. ¶¶ 1, 3. Defendant accepted that he was responsible for 9.3 grams of crack, 105.3 grams of cocaine hydrochloride, and 25.6 grams of marijuana, and that he possessed a firearm during the drug offenses. Id. ¶ 4. For Count 1, his base offense level was 24, id. ¶ 19, but because of he failed to appear for sentencing the defendant received a two-point increase in his offense level calculation, id. ¶ 23, and he received an additional two-point increase for possessing two firearms during the offense, id. ¶ 20. Thus, his total offense level for Count 1 was calculated at 28, id. ¶ 27, with a Criminal History Category of II, id. ¶ 32, yielding a sentencing range under the U.S. Sentencing Guidelines (" Guidelines" ) of 87 to 108 months. Id. ¶ 65. At the time, the mandatory minimum sentence under 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii) was five years. Additionally, the defendant could have been sentenced to a maximum of 10 years on Count 5. Id. ¶ 64. On March 25, 2010, The Honorable James Robertson sentenced defendant to 87 months of incarceration on Counts 1 and 5, to run concurrently. Defendant now requests a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendments 748 and 750 to the Guidelines.
Pursuant to 18 U.S.C. § 3582(c)(2), a district court may not modify a term of imprisonment once it has been imposed except where expressly permitted by statute or by Federal Rule of Criminal Procedure 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to this general rule provides that:
[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 ... 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). The Guidelines for possession and distribution of crack have been reduced a number of times, most recently in response to the Fair Sentencing Act of 2010 (" FSA" ), Pub. L. No. 111-220, 124 Stat. 2372, which took effect on August 3, 2010. The pre-FSA crack sentencing guidelines were greatly criticized for their disproportionately harsh treatment of crack versus powder cocaine possession and distribution. See, e.g., Dorsey v. United States,
___ U.S. ___, 132 S.Ct. 2321, 2328-29, 183 L.Ed.2d 250 (2012). Under the pre-FSA guidelines, there was a 100-to-1 disparity in the amount of crack cocaine necessary to trigger strict mandatory-minimum sentences. Id. The FSA lowered that disparity to 18-to-1. Id. at 2328. The United States Sentencing Commission promulgated Emergency Amendment 748, which became effective on November 1, 2010, and lowered the guidelines ranges for crack offenses. U.S. Sentencing Guidelines Manual ( USSG) App. C. Vol. III. Amendment 750, which made the new lower sentencing ranges established by Amendment 748 permanent, took effect on November 1, 2011. Id. And, the most recent policy statement made Amendment 750 retroactive. U.S.S.G. § 1B1.10.
However, the Sentencing Commission's revised policy statements state that " 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(a)(3) (emphasis added). Indeed, the Supreme Court held in Dillon v. United States that " Section 3582(c)(2)'s ...