United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Lester Stanley Austin ("Defendant" or "Mr.
Austin") is presently serving a sentence of 132 months
imprisonment, followed by 60 months of supervised release,
after having entered a plea of guilty to one count of
Conspiracy to Distribute and Possess with Intent to
Distribute 5 Kilograms or More of Cocaine and 280 Grams or
More of Cocaine Base. See July 9, 2012 Plea
Agreement., ECF No. 157; November 15, 2012 Judgment, ECF No.
202. Proceeding pro se, he has filed a motion
pursuant to 18 U.S.C. § 3582(c)(2), requesting that this
Court reduce his term of imprisonment. See Def s
Mot. for Sentencing Modification, ECF No. 239 (docketed as
"Retroactivity Prep Documents"). The Government
opposes the Defendant's request. See United
States' Opposition to Defendant's Pro Se
Motion for Sentencing Modification, ECF No. 246. For the
reasons stated herein, Defendant's Motion for Sentencing
Modification is DENIED.
guilty plea was entered pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. Mr. Austin and the
Government agreed to "a sentence of not less than 132
months of incarceration and not more than 156 months of
incarceration, followed by 5 years of supervised
release." Plea Agreement, ECF No. 157, at 2. The Plea
Agreement makes clear that "because Defendant AUSTIN has
two prior felony convictions for controlled substance
offenses, he is a career offender and thus, under the
Sentencing Guidelines, his Base Offense Level is 37."
Id. at 3; see U.S.S.G. § 4B 1.1
(b)(1). The Government agreed to recommend a 3-level
reduction (to 34) in Defendant's offense level, pursuant
to U.S.S.G. § 3E1.1, to afford Defendant credit for his
acceptance of responsibility. Plea Agreement, ECF No. 157, at
Career Offender Status
final Presentence Investigation Report, the Probation Office
first calculated Defendant's offense level using a base
offense level of 34, which was based on drug quantity tables,
U.S.S.G. Section 2D1.1, and was adjusted up 2 levels due to
the Defendant's use of violence in connection with the
conspiracy. U.S.S.G. § 2D1.1(b)(2). This resulted in an
adjusted offense level of 36. Final Presentence Report, ECF
No. 197, at 10.
Probation Office alternately calculated Defendant's
offense level as 37, based on his status as a career
offender. Id. A career offender is defined as
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.
U.S.S.G. § 4Bl.l(a); see Final Presentence
Report, ECF No. 197, at 10, 11, 15. Defendant does not
dispute his status as a career offender.
Government notes that "[f]or a career offender, offense
levels are initially calculated based on the drug quantity
tables, U.S.S.G. § 2D1.1, and the career offender
provision, U.S.S.G. § 4B1.1, and whichever calculation
produces a higher result determines the defendant's
actual offense level under the Sentencing Guidelines."
Govt's Opp'n, ECF No. 246, at 2 n. 1; see
United States v. Akers, 892 F.3d 432 (D.C. Cir.
2018) (discussing calculation of the offense level where a
defendant has been determined to be a career offender). In
Akers, the Court of Appeals for the District of
Columbia Circuit stated that:
The career-offender guideline "requires taking the
greater offense level between the offense level calculated
independent of § 4B1.1, and the career offender offense
level, which is based on the statutory maximum."
United States v Lawrence, 662 F.3d 551, 559 (D.C.
Cir. 2011). Where, as here, the career-offender provision
produces a higher offense level, the court calculates the
defendant's sentencing range by adopt[ing] the offense
level for a career offender and a criminal history category
of VI." United States v. Tepper, 616 F.3d 583,
587 (D.C. Cir. 2010).
Akers, 892 F.3d at 433.
Defendant started with a base offense level of 37, based on
his career offender status, and Defendant then received a
three-level downward adjustment for acceptance of
responsibility, resulting in a total offense level of 34.
Final Presentence Report, ECF No. 197, at 10. While the
Guidelines range was 262-327 months for a total offense level
of 34 and a criminal history category of VI, the parties
agreed under Rule 11(c)(1)(C) to a below-Guidelines sentence
of imprisonment sentence ranging from 132-156 months. Final
Presentence Report, ECF No. 197, at 29. In making its own
Guidelines determination, the Court indicated that it agreed
with the calculations of the Probation Office, and at the
sentencing hearing, the Court accepted the Rule 11(c)(1)(C)
plea and imposed a sentence of 132 months imprisonment.
See Judgment, ECF No. 202. Defendant challenges his
sentence pursuant to 18 U.S.C. Section 3582(c)(2) and
U.S.S.G. Amendment 782.