OPINION AND ORDER
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
The
matter is before the Court on the motion [Dkt. No. 1619] of
defendant Antwuan Ball, also known as Abdus Salaam Rashaad,
to reduce his sentence pursuant to 18 U.S.C. §
3582(c)(2) based on Amendment 782 to the United States
Sentencing Guidelines. Upon careful consideration of the
parties' written submissions, the relevant legal
authorities, and the entire record in this case, the Court
will deny the motion.[1]
I.
BACKGROUND
This
case was originally assigned to Judge Richard W. Roberts, who
presided over the trial of Mr. Ball and his co-defendants in
2007. In November 2007, the jury found Mr. Ball guilty of one
count of distributing five grams or more of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii). See United States v. Jones, 744 F.3d
1362, 1365 (D.C. Cir. 2014); Judgment at 1.
Shortly
before Mr. Ball was sentenced, the United States Sentencing
Commission promulgated temporary emergency amendments to the
Sentencing Guidelines with an effective date of November 1,
2010. See U.S.S.G. app. C, amend. 748 (Supp. Nov. 1,
2010); 75 Fed. Reg. 66188, 66188-93 (Oct. 27, 2010). Prior to
the emergency amendments, 1.5 kilograms of cocaine base was
the threshold between offense level 34 (“At least 500 G
but less than 1.5 KG”) and offense level 36 (“At
least 1.5 KG but less than 4.5 KG”). See
U.S.S.G. § 2D1.1(c) (2010). After the emergency
amendments, 2.8 kilograms of cocaine base was the threshold
between offense level 34 (“At least 840 G but less than
2.8 KG”) and offense level 36 (“At least 2.8 KG
but less than 8.4 KG”). See U.S.S.G. §
2D1.1(c) (Supp. Nov. 1, 2010).
Judge
Roberts sentenced Mr. Ball on March 17, 2011, four months
after the emergency amendments went into effect. He found Mr.
Ball responsible for “at least 1.5 kilos” of
cocaine base, resulting in a base offense level of 34.
See Sentencing Tr. at 37; PSR ¶ 90; see
also United States v. Wyche, 741 F.3d 1284, 1292 (D.C.
Cir. 2014) (“Under the Sentencing Guidelines, the
district court determines a defendant's base offense
level - and, ultimately, his guideline range - by delineating
his relevant conduct.”) (internal citation and
quotation marks omitted). Judge Roberts added a two-level
enhancement for handgun possession pursuant to U.S.S.G.
§ 2D1.1(b)(1) and a four-level enhancement for Mr.
Ball's role as an organizer or leader of the criminal
activity pursuant to U.S.S.G. § 3B1.1(a), resulting in a
total offense level of 40. See id. at 37-39; PSR
¶¶ 90-98. With a total offense level of 40 and a
criminal history category of I, Mr. Ball's applicable
Guideline range was 292 to 365 months. See
Sentencing Tr. at 68; PSR ¶ 142.
Varying
below the Guidelines, Judge Roberts sentenced Mr. Ball to 225
months, followed by five years of supervised release. See
United States v. Jones, 744 F.3d at 1366; Sentencing Tr.
at 72. Judge Roberts justified these downward variances based
on the disparity between sentences authorized for crack
cocaine offenses and those for powder cocaine offenses, and
to avoid unwarranted sentencing disparity between Mr. Ball
and his co-defendants. See Sentencing Tr. at 69-70;
Statement of Reasons at 2-3. Judge Roberts also explained
that he would reduce Mr. Ball's sentence by an additional
fifteen months to remedy any prejudice from the
three-and-a-half year delay in his sentencing. See
Sentencing Tr. at 70-71; Statement of Reasons at 3-4. The
D.C. Circuit affirmed the sentence in March 2014. See
United States v. Jones, 744 F.3d at
1367-70.[2]
This
case was reassigned to the undersigned in April 2016. On
January 24, 2017, the Court docketed a letter from Mr. Ball
[Dkt. No. 1600], seeking a sentencing reduction based on the
“drugs-minus-two” amended Guidelines. On May 2,
2017, Mr. Ball, through appointed counsel, filed the instant
motion for a sentence reduction under 18 U.S.C. §
3582(c)(2) based on Amendment 782 to the Sentencing
Guidelines. Amendment 782 reduced by two levels the base
offense levels for certain controlled substance offenses.
See U.S.S.G. app. C, amends. 782 (reduction), 788
(making Amendment 782 retroactive). Prior to Amendment 782, a
drug quantity of at least 840 grams but less than 2.8
kilograms of cocaine base carried an offense level of 34;
after the amendment, the same amount fell to an offense level
of 32. As noted, with a drug quantity of at least 1.5
kilograms of cocaine base, Mr. Ball's base offense level
had been a level 34. With a two-level enhancement for handgun
possession and a four-level enhancement for his leadership
role, his total offense level was 40 and his criminal history
category was I. That yielded a Guideline range of 292 to 365
months at the time of sentencing. Mr. Ball argues that a
two-level reduction to offense level 38 would result in a
revised Guideline range of 235 to 293 months under the
current Guidelines. He asks the Court to reduce his sentence
from 225 months to 220 months, fifteen months below the
bottom of the revised Guideline range and five months below
his current sentence.
II.
LEGAL STANDARD
A court
may modify a defendant's sentence if the defendant
“has been sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A
court considering a Section 3582(c)(2) motion is to engage in
a limited, two-step inquiry. First, the court must determine
whether the defendant is eligible for a sentence
modification. To do so, the court must determine “the
amended guidelines range that would have been applicable to
the defendant” had the relevant amendment been in
effect at the time of the initial sentencing. United
States v. Wyche, 741 F.3d at 1292 (quoting Dillon v.
United States, 560 U.S. 817, 827 (2010)). Second, if the
defendant is eligible for a sentence modification, the court
must consider any applicable factors under 18 U.S.C. §
3553(a) and determine whether, in its discretion, a reduction
in the defendant's sentence is “warranted in whole
or in part under the particular circumstances of the
case.” United States v. Wyche, 741 F.3d at
1292 (quoting Dillon v. United States, 560 U.S. at
827)). The court is to consider the Section 3553(a) factors
“to the extent that they are applicable” and
determine if the sentence reduction is “consistent with
applicable policy statements issued by the Sentencing
Commission.” See 18 U.S.C. § 3582(c)(2).
III.
DISCUSSION
A.
Drug Quantity
The
Court must first determine the amended Guideline range that
would have been applicable if Amendment 782 had been in
effect when Mr. Ball was sentenced in March 2011. At
sentencing, Judge Roberts found Mr. Ball responsible for
“at least 1.5 kilos” of cocaine base, resulting
in a base offense level of 34. See Sentencing Tr. at
37. With a two-level enhancement for handgun possession and a
four-level enhancement for his leadership role, his total
offense level was 40 and his criminal history category was I.
That yielded a Guideline range of 292 to 365 months at the
time of sentencing. Based on a drug quantity of at least 1.5
kilograms of cocaine base, Mr. Ball argues that Amendment 782
now puts him at a total offense level of 38 and a Guideline
range of 235 to 293 months. He asks the Court to reduce his
sentence from 225 months to 220 months, fifteen months below
the bottom of the revised Guideline range.
The
United States responds that Judge Roberts did not make a
specific drug quantity finding at sentencing; he found only
that Mr. Ball was responsible for “at least” 1.5
kilograms of cocaine base.[3] The United States asks the Court to
make a new, more precise drug quantity finding in order to
determine Mr. Ball's applicable Guideline range. It
maintains that any such factual inquiry would likely result
in a finding that Mr. Ball was responsible for at least 2.8
kilograms of cocaine base, which would put him at a base
offense level of 34, a total offense level of 40, and a
Guideline range of 292 to 365 months under the ...