United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Calvin Bernard Green has moved for a reduction of sentence
based on Amendment 782 to the United States Sentencing
Guidelines ("U.S.S.G."), pursuant to 18 U.S.C.
§ 3582(c)(2).[*] For the following reasons,
Green's motion must be denied.
August 17, 1999, Green entered a plea of guilty to various
drug distribution and firearm offenses. Prior to sentencing,
the probation officer prepared a presentence report, which
designated Green as a career offender under § 4B1.1 of
the Sentencing Guidelines, and calculated the applicable
guideline range of imprisonment based on that provision. At
the time of sentencing, the court adopted the presentence
report and found that Green qualified as a career offender.
In light of the career offender designation, the guideline
range of imprisonment was 262 to 327 months, plus 60 months
for a violation of 18 U.S.C. § 924(c). The court
departed downward from that range and imposed a total term of
imprisonment of 240 months.
now seeks a sentence reduction based on Amendment 782 to the
Sentencing Guidelines, which generally reduced the base
offense levels applicable to drug offenses under § 2D
1.1 by two levels. The court issued a notice advising Green
that he may not be eligible for a reduction because of his
designation as a career offender under § 4B1.1. The
Office of the Federal Public Defender agreed to assist Green.
An attorney in the office has filed a brief in support of
Green's motion. The motion is now ripe for disposition.
district court generally may not modify a term of
imprisonment once it has been imposed unless a defendant is
eligible for a reduction under 18 U.S.C. § 3582(c).
United States v. Goodwyn, 596 F.3d 233, 235 (4th
Cir. 2010). Section 3582(c)(2) allows for a reduction if the
defendant's sentence was "based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission, " and "such reduction is consistent
with the applicable policy statements issued by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2).
"applicable policy statements" referenced in §
3582(c)(2) are those found in § IB 1.10 of the
Sentencing Guidelines. Dillon v. United States, 560
U.S. 817, 826 (201). Pursuant to that provision, a sentence
reduction under § 3582(c)(2) is authorized only when a
retroactively applicable Guidelines amendment has the effect
of lowering the defendant's applicable guideline range.
U.S.S.G. § IB 1.10(a)(2)(B). The Guidelines define the
"applicable guideline range" as "the guideline
range that corresponds to the offense level and criminal
history category determined pursuant to § IB 1.1 (a),
which is determined before consideration of any departure
provision in the Guidelines Manual or any variance."
U.S.S.G. § 1B1.10 cmt. n.1(A).
case, Green's applicable guideline range was his career
offender range of 262 to 327 months, plus 60 months, which
was calculated pursuant to § 4B1.1 of the Sentencing
Guidelines. As other courts have previously explained,
"Amendment 782 amended § 2D 1.1" of the
Guidelines; it "did not lower the sentencing range
established for a career offender by § 4B1.1."
United States v. Thomas, 775 F.3d 982, 983 (8th Cir.
2014); see also United States v. Avent, 633
F.App'x 176 (4th Cir. 2016) ("Amendment 782 is not
applicable to sentences . . . derived from the career
offender provisions in the Sentencing Guidelines.").
Therefore, Green's applicable guideline range was not
affected by Amendment 782. Although the court departed
downward from that range at sentencing, "the
'applicable guideline range' remains the original
pre-departure range." United States v. Webb,
760 F.3d 513, 520 (6th Cir. 2014). Because that range has not
been lowered by any retroactively-applicable amendments to
the Sentencing Guidelines, Green is not eligible for a
sentence reduction under § 3582(c)(2). See United
States v. Hall, 627 F.App'x 266 (4th Cir. 2016)
("[B]ecause Hall was sentenced as a career offender (a
Guidelines range from which the district court departed
downward at sentencing), Amendment 782 did not lower his
applicable Guidelines range, and he is therefore not eligible
for a sentence reduction."); United States v.
Rinaldi, 623 F.App'x 579, 581 (3d Cir. 2015)
("Rinaldi's applicable guideline range is the range
calculated pursuant to the career offender designation of
§ 4B 1.1, and not the range calculated after applying
any departure or variance. Accordingly, Amendment 782 - which
alters the offense levels for drug crimes but does not affect
the offense levels for career offenders - would not lower
Rinaldi's applicable guidelines range, and it would thus
be contrary to the applicable policy statement to reduce
these reasons, Green's motion for a sentence reduction
based on Amendment 782 must be denied. The Clerk is directed
to send copies of this memorandum opinion and the
accompanying order to the defendant and all counsel of
Green was sentenced by Senior United States District Judge
James C. Turk. Judge Turk is deceased and the motion has been
assigned to the ...