                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

            v.                                             Criminal No. 08-55 (CKK)
 ALEM TESFAMARIAN,

    Defendant.


                                  MEMORANDUM OPINION
                                      (April 29, 2013)

        Defendant Alem Tesfamarian is currently serving a sentence of 71 months imprisonment

for conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine

base.   Presently before the Court is the Defendant’s pro se [29] Motion for Reduction of

Sentence Pursuant to [] 18 U.S.C. § 3582(c)(2), which the Government opposes.               Upon

consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the

Court finds the Defendant is ineligible for a reduction of his sentence pursuant to section

3582(c)(2). Accordingly, the Defendant’s motion is DENIED.

                                       I. BACKGROUND

        The Defendant was charged by indictment with two counts of unlawful distribution of 5

grams or more of cocaine base and one count of unlawful distribution of 50 grams or more of

cocaine base. Indictment, ECF No. [1]. The Defendant subsequently pled guilty to count one of

the superseding information, namely conspiracy to distribute and possess with intent to distribute

50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. For sentencing purposes, the

Defendant was accountable for at least 4.5 kilograms of cocaine base. Presentence Investigation



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            Def.’s Mot., ECF No. [29]; Gov’t’s Opp’n, ECF No. [36].
Report (“PSR”) ¶ 14. The Defendant’s base offense level was 38, adjusted to a total offense

level of 33. Id. at ¶ 27. With a criminal history category of I, the Defendant’s applicable

guidelines range was 135 to 168 months, with a 10 year mandatory minimum sentence. Id. at ¶¶

61-62. Pursuant to 18 U.S.C. § 3553(f) and United States Sentencing Guideline § 5C1.2(a)(l-5),

the Court found the Defendant was eligible for a sentence below the statutory mandatory

minimum, and sentenced the Defendant to 71 months incarceration on August 11, 2010.

       Enacted in 2010, the Fair Sentencing Act increased the amount of cocaine base necessary

to trigger various mandatory minimum sentences. Pub. L. 111-220, 124 Stat. 2372 (Aug. 3,

2010); see 21 U.S.C. § 841(b)(1) (2013).            The United States Sentencing Commission

subsequently revised the sentencing guidelines for crack cocaine offenses to reflect the increased

quantities necessary to trigger various mandatory minimums. U.S.S.G. App. C, amend. 750.

The United States Probation Office indicated that under the revised guidelines, the Defendant’s

base offense level is now 31, with an applicable guideline range of 108 to 135 months.

Probation Mem., ECF No. [33]. The Defendant now moves to reduce his sentence.

                                       II. DISCUSSION

       Section 3582(c) of Title 18 of the United States Code provides that the Court may modify

a term of imprisonment once imposed under three circumstances: (1) upon motion by the

Director of the Bureau of Prisons; (2) to the expressly permitted by statute or Federal Rule of

Criminal Procedure 35; or (3) where the applicable sentencing guideline range has been

retroactively lowered by the Sentencing Commission. Only the third scenario is at issue in this

case, 18 U.S.C. § 3582(c)(2), which provides:




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       [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.

Although section 3582(c)(2) authorizes the Court to “reduce an otherwise final sentence that is

based on [an] amended [sentencing guideline] provision,” any such reduction “must be

consistent with applicable policy statements issued by the Sentencing Commission.” Dillon v.

United States, 130 S. Ct. 2683, 2688 (2010).

       The relevant policy statement is section 1B1.10 of the sentencing guidelines, which

provides that “[e]xcept as provided in subdivision (B), the court shall not reduce the defendant’s

term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is

less than the minimum of the amended guideline range determined under subdivision (1) of this

subsection.”   U.S.S.G. § 1B1.10(b)(2)(A); Dillon 130 S. Ct. at 2688 (“Except in limited

circumstances, however, § 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from

reducing a sentence to a term that is less than the minimum of the amended guideline range.”)

(citation omitted).   Subdivision B provides that the Court may only reduce a defendant’s

sentence below the amended range “[i]f the term of imprisonment imposed was less than the

term of imprisonment provided by the guideline range applicable to the defendant at the time of

sentencing pursuant to a government motion to reflect the defendant's substantial assistance to

authorities.” U.S.S.G. § 1B1.10(b)(2)(B).

       In this case, the Government declined to file a substantial assistance motion.         The

Defendant was sentenced to a term of imprisonment below the applicable guideline range (and

statutory mandatory minimum) under the safety valve provision, § 5C1.2(a)(l-5), rather than the

substantial assistance provision, § 5K1.1. The Defendant’s original sentence of 71 months is
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well below both the original guideline range (135 to 168 months) and the amended guideline

range (108 to 135 months).      Any further reduction of the Defendant’s sentence would be

inconsistent with the applicable policy statements issued by the Sentencing Commission, and

therefore is not permitted by 18 U.S.C. § 3582(c)(2).

                                      III. CONCLUSION

       For the foregoing reasons, the Court finds the Defendant is not eligible for a reduction of

his current sentence.    The 2010 amendments to the sentencing guidelines reduced the

Defendant’s applicable guideline range. However, because the Defendant was sentenced below

both the original and amended guideline ranges, the relevant Sentencing Commission policy

statement precludes a reduction of the Defendant’s sentence.        Therefore, the Defendant is

ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), and the Defendant’s [29]

Motion for Reduction of Sentence Pursuant to [] 18 U.S.C. § 3582(c)(2) is DENIED. An

appropriate Order accompanies this Memorandum Opinion.



                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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