UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
UNITED STATES OF AMERICA, )
)
)

) Criminal Action No. 93-CR-315-2 (RCL)
v. )
)
EZELL A. STARKS )
)
Defendant. )
)

MEMORANDUM & ORDER

I. INTRODUCTION

Defendant Ezell Starks’ motion under 18 U.S.C. § 3582(0)(2) to reduce his sentence
based on amendments to the United States Sentencing Guidelines is before this Court. Upon
consideration of the motion and the entire record herein, the motion will be DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND

On June 3, l994, Starks was found guilty following a jury trial of aiding and abetting the
unlawful distribution of 50 grams or more of cocaine base, also known as crack, in violation of
21 U.S.C. §§ 84l(a)(l), 84l(b)(l)(A)(iii). At sentencing, in accordance with the United States
Sentencing Guidelines ("the Guidelines"), the Court found a total offense level of 37 and a
category VI criminal history. Accordingly, defendant’s applicable sentencing range was 360
months to life. The Court sentenced defendant to a 360-month term of incarceration, to be
followed by a five -year term of supervised release.

Effective November l, 2007, the United States Sentencing Commission amended the

Guidelines to provide for a two level reduction in the base offense level for crack cocaine

offenses. U.S.S.G. App. C, Amend. 706 (Supp. 2007). Later, Amendment 713 made the
reduction retroactively applicable. U.S.S.G. App. C, Amend. 713 (Supp. 2008). On March 29,
2010 the defendant filed a Motion for Modification of Term of Imprisonment pursuant to 18
U.S.C. § 3582 and the amendments to the Guidelines. For the reasons that follow, defendant’s
motion will be denied.

III. ANALYSIS

Pursuant to 18 U.S.C. § 3582(0)(2), a district court may not modify a term of
imprisonment once it has been imposed except where expressly permitted by statute or by
F ederal Rule of Criminal Procedure 35. 18 U.S.C. § 3582(c)(l)(B). One statutory exception to
this general rule provides that:

[I]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 . . . the court may reduce the term of imprisomnent, 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.

18 U.S.C. § 3582(c)(2).

Amendment 706 provides for such a reduction. However, defendant is unable to avail
himself of this section because the district court did not sentence Starks under the crack cocaine
offenses guidelines. Rather, it sentenced him under U.S.S.G. § 4Bl . l , the career offender
guideline Consequently, Amendment 706, which does not amend the career offender sentencing
guidelines, has no effect on the ultimate sentencing range imposed on Starks. See United States.
v. Moore, 541 F.3d 1323 (1 lth Cit. 2008), cert. dem'ed, 129 S. Ct. 965 (2009) (noting that §
3582(c)(2) does not authorize a sentence reduction if the relevant amendment "does not have the

effect of lowering the defendant’s applicable guideline range"); United States v. Thomas, 524

2

F.3d 889, 890 (8th Cir. 2008) (per curiam); United States v. Williams, 551 F.3d 182, 185-86 (2nd
Cir. 2009); United States v. Sharkley, 543 F.3d 1236, 1238-39 (10th Cir. 2008); United States v.
Nabried, 310 Fed. Appx. 529, 532 (3rd Cir. 2009); United States v. P00le, 550 F.3d 676, 679
(7th Cir. 2008); see also United States v. Liddell, 543 F.3d 877, 882 n.3 (7th Cir. 2008) (stating
same in dicta).

This position is consistent with U.S.S.G. § lB.l0(a), the applicable Sentencing
Commission policy statement, which provides that a court may reduce a defendant’s sentence so
long as the reduction is consistent with the policy statement. Reducing a defendant’s sentence is
not consistent with the policy statement if none of the amendments listed in § 3582(c)(2) apply to
the defendant, or an amendment listed therein "does not have the effect of lowering the
defendant’s applicable guideline range." United States v. Martinez, 572 F. 3d 82, 86 (2nd Cir.
2009) (citing U.S.S.G. § lBl.10(a)). For the reasons stated in this opinion, the defendant’s
motion will be denied.

IV. CONCLUSION AND ORDER

The defendant was sentenced pursuant to U.S.S.G. § 4Bl .l, the career offender guideline,
rather than under the sentencing guidelines for crack cocaine. Therefore, this Court has no power
to modify his sentence under 18 U.S.C. § 35 82(c)(2). Accordingly, it is hereby

ORDERED that defendant’s motion is denied.

SO ORDERED.
Zg C -   °’° //D
Chief Ju@ge Royce C. Lamberth Date

