                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA

                v.                                       Criminal Action No. 07-235 (JDB)
KEVIN QUATTLEBAUM,
     Defendant.


                                 MEMORANDUM OPINION

       Defendant Kevin Quattlebaum seeks to reduce his 126-month sentence for conviction of

a crack cocaine offense based on a retroactive amendment to the sentencing guidelines. See 18

U.S.C. § 3582(c)(2). The Court agrees that Quattlebaum’s sentence should be reduced. But

because the governing statute imposes a 120-month mandatory minimum, the Court will grant

Quattlebaum’s motion only in part.

       In 2007, Quattlebaum was arrested and charged with unlawful possession with intent to

distribute 50 grams or more of cocaine base (also known as crack) in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(iii) (2006). He was convicted after a jury trial. Quattlebaum appealed, and

the D.C. Circuit affirmed his conviction. See United States v. Quattlebaum, 331 F. App’x 755

(D.C. Cir. 2009). On June 30, 2008, the Court sentenced Quattlebaum. Based on the evidence at

trial, the Court found that defendant was responsible for 180.35 grams of crack cocaine. See

Sentencing Tr. [Docket Entry 80] at 5:15-17 (June 30, 2008). Given that amount, the United

States Sentencing Guidelines range applicable to defendant was 121 to 151 months. And the

governing statute provided that any person who possesses, with intent to distribute, 50 grams of

more of crack cocaine “shall be sentenced to a term of imprisonment which may not be less than

10 years.” 21 U.S.C. § 841(b)(1)(A)(iii) (2006). The Court noted that “[c]onsistent with the



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sentencing guidelines and that statutory sentencing requirement, I have concluded that a sentence

in the lower end of the guidelines is appropriate,” and sentenced Quattlebaum to 126 months of

imprisonment. Sentencing Tr. at 30:21-23. The Court also imposed a period of supervised release

and a special assessment.

       The 120-month mandatory minimum required by 18 U.S.C. § 841 at the time of

Quattlebaum’s sentence reflected a gross disparity in the treatment of crack cocaine and powder

cocaine, “impos[ing] upon an offender who dealt in powder cocaine the same sentence it

imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine.”

Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012). In 2010, Congress enacted the Fair

Sentencing Act of 2010 (“FSA”), which reduced the crack-to-power disparity from 100-to-1 to

18-to-1. See Pub. L. No. 111-220, 124 Stat. 2372. The statute took effect on August 3, 2010.

Under the FSA, the mandatory minimum sentence for possessing, with intent to distribute,

180.35 grams of crack cocaine would only be 60 months. See 21 U.S.C. § 841(b)(1)(B)(iii)

(2012); see also FSA § 2(a), Pub. L. No. 111-220, 124 Stat. 2372.

       In light of the FSA, the United States Sentencing Commission promulgated amendments

that lowered the guidelines ranges for crack offenses. See United States Sentencing Commission

Guidelines Manual (U.S.S.G.), amends. 748 & 750 (2011 app. C, vol. 3). In a recent policy

statement, the Sentencing Commission made the reduced guideline ranges retroactive. See

U.S.S.G. § 1B1.10(c) (2012). The parties agree that because the sentencing guidelines range was

lowered retroactively, the applicable range for Quattlebaum’s offense level and criminal history

category is now 78 to 97 months, well below his actual sentence. Relying on this retroactive

amendment to the applicable sentencing guidelines range, Quattlebaum moves to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2) [Docket Entry 89]. The government does not oppose



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a reduction of Quattlebaum’s sentence to 120 months, but objects to any further reduction

[Docket Entry 92].

       A district court “may not modify a term of imprisonment once it has been imposed,”

except in limited circumstances. See 18 U.S.C. § 3582(c); see also Dillon v. United States, 130

S. Ct. 2683, 2690 (2010). As relevant here, a court may reduce the sentence “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.” See 18 U.S.C. § 3582(c)(2).

However, because sentencing statutes “trump[] the Guidelines,” the Court must sentence an

offender to at least the minimum prison term set out in the statute regardless of the applicable

guidelines range. See Dorsey, 132 S. Ct. at 2327. Accordingly, if the 120-month mandatory

minimum applies to Quattlebaum, the Court cannot reduce his sentence below that point.

       As an initial matter, the Court finds that a reduction of Quattlebaum’s sentence to 120

months is appropriate. After considering the amended guidelines range of 78 to 97 months, the

Sentencing Commission’s policy statement set forth at U.S.S.G. § 1B1.10, the 18 U.S.C.

§ 3553(a) factors, and the government’s lack of opposition to the reduction, the Court finds the

reduction warranted.

       The remaining issue is whether the Court can reduce the sentence below 120 months,

bringing it within or closer to the amended guidelines range. As the parties recognize, this turns

on whether the FSA, which repealed the 120-month mandatory minimum, applies to

Quattlebaum, who was sentenced on June 30, 2008, more than two years before the FSA’s

enactment. Binding authority has answered this question “no.” In Dorsey, the Supreme Court

held that “the Fair Sentencing Act’s new minimums apply to all of those sentenced after August

3, 2010,” 132 S. Ct. at 2336, while acknowledging that this rule creates a disparity “between pre-



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Act offenders sentenced before August 3 and those sentenced after that date.” Id. at 2335. And

the D.C. Circuit has squarely held that the FSA “is not retroactive” and a defendant who was

“sentenced prior to the August 3, 2010 date of the Act’s enactment” “cannot benefit from [it].”

United States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir. 2012) (internal quotation marks

omitted); see also United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012) (“the FSA is

inapplicable to offenders, like Fields, who were sentenced before passage of the statute”).

        Given this rule—that only defendants sentenced after August 3, 2010, can benefit from

the FSA—Quattlebaum could benefit from the reduced minimums only if this section 3582

proceeding constitutes a new sentencing. The Supreme Court has considered and rejected this

very characterization of section 3582(c)(2) proceedings, however, holding that the provision

“authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary

resentencing proceeding.” Dillon, 130 S. Ct. at 2691 (emphasis added); see also U.S.S.G.

§ 1B1.10(a)(3) (“proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not

constitute a full resentencing of the defendant”). Accordingly, Quattlebaum’s sentencing date is

indisputably June 30, 2008; the FSA thus does not apply to him.

        Quattlebaum raises a number of other arguments, but none can overcome the governing

rule. For instance, he argues that the reasoning of Dorsey supports applying the FSA

retroactively to defendants in his position. True, the Supreme Court’s Dorsey analysis supports

broad application of the FSA. But Dorsey itself limited its reasoning to defendants sentenced

after August 3, 2010, and the D.C. Circuit’s holdings in Bigesby and Fields have recognized and

reaffirmed this point.1 Quattlebaum also emphasizes the arbitrariness of treating differently


1
  Moreover, in applying the FSA to pre-Act offenders who were sentenced after the Act, the Supreme Court relied
heavily on the Sentencing Reform Act’s focus on the date “the defendant is sentenced.” See Dorsey, 132 S. Ct. at
2332 (internal quotation marks omitted). This critical statutory hook is inapplicable to defendants sentenced before
the FSA’s enactment.

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individuals “with identical criminal histories, who engaged in the same criminal conduct

involving the same amount of crack, and who sought § 3582(c)(2) reductions at the same time

from the same judge.” Def.’s Supp’t [Docket Entry 94] at 8 (June 28, 2012). But “‘disparities,

reflecting a line-drawing effort, will exist whenever Congress enacts a new law changing

sentences.’” Fields, 699 F.3d at 522 (quoting Dorsey, 132 S. Ct. at 2335). And the Supreme

Court has acknowledged (and deemed acceptable) that a disparity will exist between otherwise

similar offenders based on their sentencing dates. See Dorsey, 132 S. Ct. at 2335 (acknowledging

that its holding “will create a new disparity”); see also Fields, 699 F.3d at 522 (“To be sure, the

FSA, as interpreted by Dorsey, produces a certain degree of arbitrariness.”). The existence of this

disparity therefore cannot require applying the FSA to all offenders who file a section 3582(c)(2)

motion regardless of their sentencing date. Quattlebaum also underscores the unfairness of the

crack-powder disparity and the desirability, given Congress’s recognition in the FSA that the

disparity is too great, of applying the reduced disparity broadly. It may be unfortunate that

Quattlebaum, who is serving a sentence that both Congress and the Sentencing Commission now

consider greater than necessary for his crime, cannot get a full reprieve. But Congress, in

choosing not to make the FSA retroactive, decided that those like Quattlebaum should continue

to serve more severe sentences, and the Court cannot reduce his sentence below 120 months in

light of Congress’s choice.2

         Several courts in this district have considered similar arguments about the FSA’s

application in section 3582(c)(2) proceedings and have reached the same result. See, e.g., United

2
  In his response to the government’s sur-reply, Quattlebaum argues that declining to apply post-FSA mandatory
minimums where an amended guidelines range applies “raise[s] equal-protection concerns” because Congress’s
interest in the finality of sentences “has been absolved by § 3582(c)(2) and the Sentencing Commission’s decision to
make the amended guidelines retroactive.” Def.’s Resp. to U.S.’s Sur-Reply [Docket Entry 96] at 2 (July 27, 2012).
But Congress does not lose all interest in the finality of sentences such as defendant’s by allowing the “limited
adjustment,” Dillon, 130 S. Ct. at 2691, permitted under section 3582(c)(2). Accordingly, the “interest in the finality
of sentences,” which provides a “rational basis for limiting the FSA’s retroactive effect,” Bigesby, 685 F.3d at 1066
(internal quotation marks omitted), continues to justify the distinction.

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States v. Baucum, No. 92-423, 2012 WL 6185715 (D.D.C. Dec. 12, 2012); United States v.

Seldon, No. 06-318, 2012 WL 6004215 (D.D.C. Dec. 3, 2012); United States v. Sartor, No. 04-

455, 2012 WL 3095351 (D.D.C. July 30, 2012). This Court joins them, holding that the pre-FSA

mandatory minimums apply to Quattlebaum and preclude any sentence reduction below 120

months in this section 3582(c)(2) proceeding.

                                        CONCLUSION

       For these reasons, the Court will grant [89] defendant’s motion to reduce his sentence to

120 months, but will deny any further reduction. A separate order will be issued.

                                                                              /s/
                                                                          JOHN D. BATES
                                                                     United States District Judge
Dated: March 22, 2013




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