United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Cortez Robinson has filed a motion for 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, the motion must
October 11, 2008, Robinson entered a plea of guilty to
conspiracy to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior
to sentencing, the probation officer prepared a presentence
report, which designated Robinson as a career offender under
§ 4B1.1 of the Sentencing Guidelines, and calculated the
applicable guideline range based on that provision. At the
time of sentencing, the court adopted the presentence report
without change. In light of the career offender designation,
the guideline range of imprisonment was 262 to 327 months.
The court granted a substantial assistance motion filed by
the government and imposed a 168-month term of imprisonment.
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 of the Guidelines by two levels. The court previously
issued a notice advising the defendant that he may not be
eligible for a reduction because of his designation as a
career offender under § 4B1.1. Robinson has since filed
a pro se response, in which he emphasizes that he was
originally sentenced below the career offender range as a
result of a substantial assistance motion by the government.
The motion for reduction of sentence is ripe for
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
Guidelines. Dillon v. United States, 560 U.S. 817,
826 (2010). 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. § 1B1.10(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
§ 1B1.1 (a), which is determined before consideration of
any departure provision in the Guidelines Manual or any
variance." U.S.S.G. § IB 1.10 cmt. n.1(A).
case, Robinson's applicable guideline range was his
career offender range of 262 to 327 months, which was derived
from § 4B1.1 of the Sentencing Guidelines. As other
courts have previously explained, "Amendment 782 amended
§ 2D1.1" 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."); United States v. Miller, 632
F.App'x 609 n.l (11th Cir. 2016) ("Amendment 782 . .
. does not affect any of the Guidelines' career offender
provisions."). Therefore, Robinson's applicable
guideline range was not affected by Amendment 782. Although
the court departed 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 Guidelines, Robinson 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
§ 4B1.1, and not the range calculated after applying any
departure or variance.") (internal citation and
quotation marks omitted).
the court notes that the fact that Robinson benefitted from a
substantial assistance motion is of no consequence in the
instant proceeding. Unlike cases involving mandatory minimum
sentences and substantial assistance, the court is not
authorized to ignore a defendant's career offender status
in determining whether the defendant is eligible for a
sentence reduction based on an amendment to the Guidelines.
See U.S.S.G. § 1B1.10(c) (clarifying that, in
"cases involving mandatory minimum sentences and
substantial assistance, " the amended guideline range
shall be determined "without regard to" the
mandatory minimum). While this may seem unfair, the court is
"not at liberty to disregard the Sentencing
Commission's clearly expressed policy choices."
United States v. Forrest, 402 F.3d 678, 689 (6th
Cir. 2005); see also United States v. Dunphy, 551
F.3d 247, 250 (4th Cir. 2009) (recognizing that "the
Commission's policy statements implementing the
statute's authorization of retroactive sentence
reductions are binding"). Unless and until the
Sentencing Commission affords similar treatment to career
offenders who provided substantial assistance to the
government, or otherwise amends the Guidelines applicable to
career offenders, the court will not have the authority to
reduce Robinson's sentence under § 3582(c)(2).
See, e.g.. United States v. Ballew, 619
F.App'x 985, 986 (11th Cir. 2015) (rejecting a career
offender's argument that the district court's
downward variance based on his substantial assistance meant
that he was eligible for a reduced sentence under Amendment
782); United States v. Thompson, No. 2:98-CR-53(03),
2016 U.S. Dist. LEXIS 60330, at *5-6 (E.D. Tenn. May 6, 2016)
(holding that a career offender who received a sentence
reduction for substantial assistance was not entitled to a
further reduction based on Amendment 782).
of these reasons, Robinson's motion for reduction of
sentence under § 3582(c)(2) 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
 Robinson was sentenced by Senior
United States District Judge James C. Turk. Judge Turk is
deceased and the motion has been assigned to the ...