UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

 

UNITED STATES OF AMERICA,
v.
Criminal No. 11-253-02 (CKK)
LESTER STANLEY AUSTIN,
Defendant.
MEMORANDUM OPINION

 

(January 11, 2019)

Defendant 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(0)(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 Modii`lcation, ECF No.
246. For the reasons stated herein, Defendant’s Motion for Sentencing Modiflcation is DENIED.

Background

Defendant’s guilty plea Was entered pursuant to Rule ll(c)(l)(C) of the F ederal 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. § 4B1.1(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 3.

Defendant’s Career Offender Status

In its final Presentence Investigation Report, the Probation Offlce flrst 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.

The Probation Offlce alternately calculated Defendant’S offense level as 37, based on his
status as a career offender. Id. A career offender is defined as folloWs:

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. § 4B1.1(a); see Final Presentence Report, ECF No. 197, at 10, 11, 15. Defendant does
not dispute his status as a career offender.

The 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.l; 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 Vl.” United States v. Tepper, 616

F.3d 583, 587 (D.C. Cir. 2010).

Akers, 892 F.3d at 433.

Accordingly, 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 Vl, the parties agreed under Rule ll(c)(l)(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
ll(c)(l)(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(0)(2) and U.S.S.G.
Amendment 782.

An'alvsis of Defendant’s Motioii

Defendant’s Motion relies upon the application of Guidelines Amendment 782, which
reduced by two levels the base offense levels for most drug-trafficking offenses, and Amendment

788, which allowed the retroactive application of Amendment 782. In determining whether a

sentence reduction is warranted under 18 U.S.C. § 3582, this Court analyzes Defendant’s Motion

under a two-step inquiry, as set forth in Dillon v. United States, 560 U.S. 817 (2010). Accordingly,
the Court must first determine whether Mr. Austin is eligible for a sentence reduction under
§3582(0)(2), and if so, to what extent, and second, whether a reduction is warranted in
consideration of the factors set out in 18 U.S.C. § 3553(a). See Dillon, 560 U.S. at 827; see also
United States v`. Butler, 130 F. Supp. 3d 317, 319-20, ajj”’a' sub nom United States v. Jones, 846
F.3d 366 (D.C. Cir. 2017). Pursuant to 18 U.S.C. § 3582(0), courts may reduce 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 been subsequently lowered by the Sentencing Commission . . . after
considering the factors set forth in [18 U.S.C.] section] 3553(a) to the extent that they are
applicable” and “if such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” Hughes v. United States, 138 S. Ct. 1765, 1773-75 (2018); Dillon, 560
U.S. at 819; see also In re Sealea' Case, 722 F.3d 361, 364 (D.C. Cir. 2013).

In this case, although Mr. Austin’s sentence was “based on” the Sentencing Guidelines,
s'ee Hughes v. United States, 138 S. Ct. at 1776, the applicable sentencing range was not
“subsequently lowered” by the Sentencing Commission because Mr. Austin qualified as a career
offender, and Amendment 782 did not lower the offense levels applicable to career offenders.
Instead, Amendment 782 impacted the offense levels that were calculated under the drug
trafficking Guideline, U.S.S.G. Section 2D1.1, but that Guideline did not play a role in determining
Mr. Austin’s sentencing range. The sentencing range considered by the Court in this case was
calculated solely from the career offender provision, U.S.S.G. Section 4B1.1, and not the drug
quantity tables found at U.S.S.G. Section 2D1.1. See United States v, Tepper, 616 F.3d 583, 587
(D.C. Cir. 2010) (finding that the drug quantity tables revised by Amendment 782 “played no role”

in determining the [career offender] defendant’s sentencing range or ultimate sentence.)

Accordingly, with a career offender, “the fact that Amendment 782 lowered the sentencing range
for [defendant’s] underlying offense does not support a sentence reduction under Section
3582(0)(2).” Akers, 892 F. 2d at 434.

Defendant’s status as a career offender makes him ineligible for a sentence reduction.
Where a defendant is sentenced based on his status as a career offender as opposed to relying on
another applicable advisory Guidelines range, Amendment 782 does not have the effect of
lowering the applicable Guidelines range and the defendant is not entitled to relief under 18 U.S.C.
§ 3582(0)(2). In cases where the application of a retroactive amendment to the Guidelines does
not result in a different Guidelines’ sentencing range, the defendant is not entitled to a reduction
in his sentence. See United States v. Berry, 618 F.3d 13, 17 (D.C. Cir. 2010) (“Section
1B1.10(a)(2)(B) of the Guidelines prohibits sentence modifications under § 3582(0)(2) if a
retroactive Guideline amendment ‘does not have the effect of lowering the defendant’s applicable
guideline range.”’) (quoting U.S.S.G. § 1B1.10(a)(2)(B)). As such, Defendant’s guidelines
calculations mirror his original guidelines calculations of 262-3 27 months _ which was the range
calculated and considered by this Court before it accepted the Rule 1 1(c)(1)(C) plea and sentenced
Defendant to 132 months of imprisonment _ and he may not avail himself of the reduction in the
base offense levels for drug offenses brought about by Amendment 782. See Berry, 618 F.3d at
17-18 (“Because [the amendment] does not lower the career-offender range, [the defendant] is
ineligible for a sentence reduction if this is his applicable guideline range.”) (internal quotation

marks omitted)).

Accordingly, the Court shall DENY Defendant’s [239] Motion for Reduction of Sentence.

An appropriate Order accompanies this Memorandum Opinion.

DATED: February 5, 2019 C;@u> \< 02 K g
coLLEEN KOLLAR_KOTELEY
UNITED sTATES DISTRICT JU.DGE

