                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA

           v.
                                                           Criminal No. 04-143-01 (CKK)
 JIMMIE V. OWENS,

    Defendant.


                                 MEMORANDUM OPINION
                                     (April 29, 2013)

       Presently before the Court are two pro se motions filed by Defendant Jimmie V. Owens

seeking a reduction of his sentence for unlawful possession with intent to distribute 50 grams or

more of cocaine base, pursuant to 18 U.S.C. § 3582(c)(2). Upon consideration of the pleadings,1

the relevant legal authorities, and the record as a whole, the Court the Defendant is not eligible

for a reduced sentence. Accordingly, the Defendant’s [42] and [49-1] Motions for Reduction of

Sentence are DENIED.

                                      I. BACKGROUND

       A.       Defendant’s Indictment, Plea, & Sentence

       The Defendant was charged by indictment with two counts of unlawful distribution of 50

grams or more of cocaine base, or crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii), one count of unlawful distribution of cocaine base within 1000 feet of a school, in

violation of 21 U.S.C. § 860(a), one count of unlawful distribution of 50 grams or more of

cocaine base and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 18

U.S.C. § 2, one count of unlawful distribution of cocaine base within 1000 feet of a school and

       1
         Def.’s Mot., ECF No. [42]; Gov’t’s Notice of Filing, ECF No. [49]; Gov’t’s Opp’n,
ECF No. [50].
aiding and abetting, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2, one count of using,

carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. §

924(c)(1), and one count of unlawful possession of a firearm and ammunition by a person

convicted of crime punishable by imprisonment for a term exceeding one year, in violation of 18

U.S.C. § 922(g)(1). The Defendant pled guilty to two counts: (1) unlawful possession with

intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii); and (2) using, carrying, and possessing a firearm during a drug trafficking offense,

in violation of 18 U.S.C. § 924(c)(1). The parties stipulated in the plea agreement that the

relevant conduct involved 373.5 grams of cocaine base. As a career offender pursuant to section

4B1.1(a) of the United States Sentencing Guidelines and with a criminal history category of VI,

the Presentence Investigation Report (without objection from the Defendant) indicated the

Defendant faced a sentencing guidelines range of 322 to 387 months, including the 60 month

consecutive mandatory minimum sentence for the firearm offense.              Pursuant to the plea

agreement, on February 15, 2005, the Defendant was sentenced to an agreed term of

imprisonment pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) of 120 months

incarceration for the possession with intent to distribute offense, and 60 months incarceration for

the firearm offense, to be served concurrently.

       B.      Revisions to the Crack Cocaine Sentences

       On November 1, 2007, the United States Sentencing Commission reduced the offense

level generally applicable to crack cocaine offenses by two levels, and made the amendment

retroactive effective March 3, 2008. U.S.S.G. App. C, amends. 706, 713. Effective August 3,

2010, the Fair Sentencing Act increased the amount of crack cocaine necessary to trigger various

mandatory minimum sentences. See 21 U.S.C. § 841(b)(1)(A)(iii) (increasing the threshold




                                                  2
quantity to trigger a ten-year mandatory minimum from 50 grams to 280 grams of crack

cocaine).   The Sentencing Commission subsequently revised the sentencing guidelines to

account for the revised threshold quantities. U.S.S.G. App. C, amend. 750.

       C.      Defendant’s Motions

       On March 18, 2008, the Special Proceedings Section of the United States Attorney’s

Office received a copy of a motion by the Defendant seeking a reduction of his sentence in light

of the November 1, 2007 amendment to the crack cocaine guidelines. See ECF No. [49-1]. The

docket indicates the Court did not receive the motion until the United States filed a notice on the

docket. Gov’t’s Notice, ECF No. [49]. The Defendant also now moves for a reduction pursuant

to the Fair Sentencing Act and related amendment to the Sentencing Guidelines.

                                       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:

       [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.

The threshold requirement for a reduced sentence under this section is that the Defendant’s

sentenced be based on a guidelines range that has subsequently been lowered. Although the

Defendant pled guilty to a crack cocaine offense, his sentence was not based on the crack



                                                3
cocaine guidelines that were later lowered by the Sentencing Commission.

       “To determine the offense level for a career offender” like the Defendant,

       the Guidelines require the court to first calculate an offense level without
       reference to the career-offender provisions. See U.S.S.G. § 4B1.1(b). Then the
       court determines a career-offender offense level, which is based solely on the
       statutory maximum prison term for the offense of conviction. Id. The career-
       offender offense level governs if it is greater than the offense level calculated
       without reference to the career-offender provision. Id. This system implements
       Congress's directive that, for career offenders, “the guidelines specify a sentence
       to a term of imprisonment at or near the maximum term authorized.” 28 U.S.C. §
       994(h); see U.S.S.G. § 4B1.1 cmt. background.

United States v. Berry, 618 F.3d 13, 15 (D.C. Cir. 2010). “Because Amendment 706 only

reduced offense levels based on drug quantities, it had no impact on sentencing ranges

determined by the career-offender guideline, which are a function of the statutory maximum

penalty for the offense of conviction.” Id. Therefore, “crack-cocaine offenders sentenced to a

term of imprisonment within a career-offender range cannot rely on Amendment 706 to obtain a

sentence reduction under § 3582(c)(2).” Id.

       At the time the Defendant was sentenced, 373.5 grams of crack cocaine resulted in a base

offense level of 34. With the three point reduction for acceptance of responsibility, the adjusted

offense level would be 31, resulting in a guidelines range of 188-235 months incarceration.

However, as set forth in the Presentence Investigation Report, the Defendant was subject to a

base offense level of 37 under the career offender guidelines.        Thus, with the three point

reduction, the Defendant’s offense level was 34, resulting in a guidelines range of 262-327

months, or 322 to 387 months including the consecutive mandatory minimum term for the

firearm count.    Because neither the 2007 amendment nor the Fair Sentencing Act/2010

amendment to the sentencing guidelines lowered the career offender guidelines that determined

the Defendant’s applicable guideline range, he is ineligible for a sentence reduction under section

3582(c)(2). See Berry, 618 F.3d at 18.


                                                4
                                    III. CONCLUSION

       For the foregoing reasons, the Court finds the Defendant’s sentence was not based on a

guidelines range subsequently lowered by the Sentencing Commission, thus the Defendant is

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

[42] and [49-1] Motions for Reduction of Sentence are DENIED.          An appropriate Order

accompanies this Memorandum Opinion.


                                                      /s/
                                                  COLLEEN KOLLAR-KOTELLY
                                                  UNITED STATES DISTRICT JUDGE




                                              5
