                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA      )
                              )
              v.              ) Criminal Action No. 05-100-16 (RWR)
                              )
JOSEPH JONES,                 )
                              )
               Defendant.     )
______________________________)


                         MEMORANDUM ORDER

     Defendant Joseph Jones moves pro se under 18 U.S.C.

§ 3582(c) for a reduction of his sentence for distributing crack

cocaine claiming that the sentencing guidelines range upon which

his sentence was based was later lowered and made retroactive to

his case by Amendment 750 to the U.S. Sentencing Guidelines

(“U.S.S.G.”).   Pet. for Reduction of Sentence under the Fair

Sentencing Act of 2010 (“Def’s Mot. to Reduce”) at 1.   The

government opposes Jones’ motion arguing that Jones is not

eligible for a reduced sentence under Amendment 750 because his

sentence was based upon his “career offender” status for which

the sentencing guidelines range was not lowered.   Gov’t Opp’n to

Def.’s Pet. for Reduction of Sentence under the Fair Sentencing

Act of 2010 (“Gov’t Opp’n”) at 1, 4-5.   Because the factors

under 18 U.S.C. § 3553(a) that must be considered in deciding
                                -2-


Jones’ reduction motion were fully considered when Jones was

given his original sentence which reflected a downward departure

from the then-applicable sentencing range and do not weigh in

favor of reducing Jones’ sentence further, the motion will be

denied.

      A jury found Jones guilty of two counts of unlawful

distribution of less than 5 grams of crack cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).   See Judgment, ECF No.

1269 at 1.   The applicable guidelines range for Jones at the

time of sentencing was 324 to 405 months of imprisonment based

upon Jones’ status as a career offender under U.S.S.G. § 4B1.1

with an offense level of 36 and a criminal history category of

VI.   See Jones’ Presentence Investigation Report (“PSR”) at

¶ 77; United States v. Ball et al., 962 F. Supp. 2d. 11, 13

(D.D.C. 2013) (“[Jones’] guidelines range was 324 to 405 months

imprisonment.”).   However, the Court departed downward from the

applicable range to the range of 168 to 210 months represented

by an offense level of 31 and a criminal history category of V.

See 5/1/2008 Sentencing Tr., ECF No. 1281 at 52:2-12.   The

departure resulted from concerns about the disparity between

crack cocaine and powder cocaine sentencing penalties at the

time, concerns about how the high criminal history category and

sentencing range overrepresented the gravity of his conviction

record and quantity of crack the jury found that he sold, and
                                -3-


consideration of mitigating factors in his background.    See id.

at 47:1-50:25; see also United States v. Jones, 744 F.3d 1362,

1366 (D.C. Cir. 2014) (“The court then . . . [departed] below

the Guidelines due to concerns about the overall severity of

punishments for crack offenses and considerations related to

Jones's background and crimes more particularly.”).   Jones was

sentenced on May 1, 2008 to 180 months of imprisonment.    Jones

appealed his sentence to the D.C. Circuit, which held that the

sentence did not violate Jones’ Sixth Amendment Rights.    United

States v. Jones, 744 F.3d 1362, 1370 (D.C. Cir. 2014).    Now,

Jones seeks to have his sentence reduced since the crack cocaine

sentencing penalties that were lowered after he was sentenced

have been made retroactive.

     District courts may modify sentences only in limited

circumstances.   Under 18 U.S.C. § 3582(c)(2), a district court

may modify a term of imprisonment

     in 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 . . . , upon motion of the defendant . . .
     after considering the factors set forth in section
     3553(a) to the extent 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 Fair Sentencing Act of 2010 and

Amendment 750 to the sentencing guidelines lowered the

sentencing range for drug offenses involving crack cocaine.
                                 -4-


U.S.S.G. App. C., Vol. III, Amend. 750 (“Amend. 750”).     However,

Amendment 750 states that crack cocaine sentences imposed

“pursuant to §§ 4B1.1 (Career Offender) and 4B1.4 (Armed Career

Offender) . . . result in sentencing guideline ranges that are

unaffected by a reduction in the Drug Quantity Table.”     Id.

      The parties divide principally over whether Jones is

eligible for a sentence reduction.     The government argues that

Jones is ineligible under § 3582(c)(2) for a sentence reduction

in part because his sentence was not based upon a sentencing

range that has subsequently been lowered, a prerequisite to

modifying a sentence under § 3582(c).     Rather, the government

asserts, Jones was sentenced based upon the sentencing range

that resulted from the application of the career offender

guideline adjustment, a range that has not been lowered.       Gov't

Opp'n at 3. 1   According to the government, Jones' claim is

foreclosed by United States v. Tepper, 616 F.3d 583 (D.C. Cir.

2010), and United States v. Berry, 618 F.3d 13 (D.C. Cir. 2010).

Id.    Tepper held that the “based on” language in 18 U.S.C.

§ 3582(c) “does not authorize a district court to reduce a



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     1 The government misspeaks since Jones' sentence was not
based upon the applicable career offender sentencing guidelines
range of 324 to 405 months associated with an offense level of
36 and a criminal history category of VI.   As is stated above,
Jones' sentence was based upon the sentencing range of 168 to
210 months associated with an offense level of 31 and a criminal
history category of V.
                                -5-


career offender's term of imprisonment based on the Sentencing

Commission's amendments to the crack cocaine guidelines” where,

unlike here, the sentence was imposed within the applicable

career offender sentencing range.     616 F.3d at 585-588.    And

Tepper does not erect an absolute bar preventing all career

offenders from seeking § 3582(c)(2) relief.     Id. at 588 n.2.

The opinion notes that Tepper’s sentencing court did not impose

the original sentence below the applicable career offender

guidelines range, and then explains that when a sentencing court

imposes a sentence below the guidelines range and the guidelines

range is amended, the sentencing court may impose a new sentence

that is comparably below the amended guidelines range.       Id.

(citing Dillon v. United States, 560 U.S. 817, 827 (2010)).

     Nor does Berry seem to present an insurmountable hurdle to

Jones.   Berry held that for a defendant who concededly was a

career offender but received an agreed-upon sentence under Fed.

R. Crim. P. 11(c)(1)(C) 2 below the career offender sentencing

range, the applicable guideline range for the purposes of a

§ 3582(c)(2) sentence reduction is the career-offender range.

Berry, 618 F.3d at 18.   But Berry left open the possibility, by

explicitly declining to hold to the contrary, that a career



______________________________________________________________
     2 The rule “allows the prosecutor and the defendant to agree

to a sentence that the district court must impose if it accepts
the plea.” Berry, 618 F.3d at 16.
                                -6-


offender sentenced outside the career offender guideline range

was indeed sentenced under some guideline range that could be

subject to being lowered, which could make such a defendant

eligible to seek a reduction under § 3582(c).   Id. at 16-17.

And Jones cites United States v. Cardosa, 606 F.3d 16 (1st Cir.

2010), which held that career offender status does not foreclose

a reduction in sentence when, as here, the original sentencing

judge bases a sentence upon a departure from the career offender

guidelines.   606 F.3d at 21; Def.’s Mot. to Reduce at 3.

     There is no need to resolve the question of Jones’

eligibility under § 3582(c)(2) for a sentence reduction because

no sentence reduction is warranted here under the 18 U.S.C.

§ 3553(a) factors that § 3582(c)(2) requires a court to

consider.   Those factors include, among others, “the nature and

circumstances of the offense,” “the history and characteristics

of the defendant,” “the need for the sentence imposed to reflect

the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense,” “the need for

the sentence imposed to afford adequate deterrence to criminal

conduct,” and “the need to protect the public from further

crimes of the defendant.”   See 18 U.S.C. § 3553(a).

     At sentencing, the Court considered all of those factors

and others.   Jones, along with at least twelve others, sold

crack cocaine in the Congress Park neighborhood of the District
                                 -7-


of Columbia from 1992 to 2005.    See 5/1/2008 Sentencing Tr. at

50:7-13; PSR ¶¶ 6, 19-49.    This drug trafficking endangered the

community and aided the addiction of an untold number of people

in the District of Columbia area.       Jones also participated in a

variety of violent acts in furtherance of this concerted drug

trafficking activity.    See 5/1/2008 Sentencing Tr. at 50:7-13,

51:1-2; PSR ¶¶ 41-43.    However, as is stated above, the Court

also considered the unwarranted disparity between crack cocaine

and powder cocaine sentencing penalties, how the high career

criminal history category and sentencing range overrepresented

the gravity of Jones’ conviction record and quantity of crack

that the jury found Jones had sold, and mitigating factors in

Jones’ background.    The Court found a downward departure to a

sentence of 180 months of imprisonment to be fair and just after

considering all § 3553(a) factors, fully anticipating that Jones

would heed the Court’s admonition to try to improve himself.      He

has submitted evidence that he has commendably done so, although

that evidence does not warrant a further reduction of his

sentence. 3   Therefore, it is hereby


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     3 These reasons yield the same result when construing this

pro se motion liberally, see, e.g., Brown v. Dist. of Columbia,
514 F.3d 1279, 1283 (D.C. Cir. 2008) (“‘[A] document filed pro
se is to be liberally construed[.]’” (quoting Erickson v.
Pardus, 551 U.S. 89 (2007)), as also seeking relief under later
reductions in the crack cocaine sentencing guidelines that were
made retroactive to Jones’ case. See U.S.S.G. Supp. to App. C.,
Amends. 782 and 788.
                               -8-


     ORDERED that Jones’ Petition for Reduction of Sentence

under the Fair Sentencing Act of 2010 [1531] be, and hereby is,

DENIED.

     SIGNED this 16th day of March, 2015.


                                                  /s/
                                        ________________________
                                        RICHARD W. ROBERTS
                                        Chief Judge
