United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge.
April 24, 2013, Jason Matthew Whiting pled guilty to
conspiracy to distribute 280 grams or more of crack cocaine
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
Whiting's plea agreement (ECF No. 321) did not specify an
agreed upon term of imprisonment. Instead, the parties
stipulated that United States Sentencing Guidelines §
4B1.1(b)(1)-the career offender designation-would apply, with
a base offense level of 37. The resulting sentencing
guidelines range was 262-327 months, though 18 U.S.C. §
841(b)(1)(A) provided a statutory minimum of 240 months. The
court ultimately sentenced Whiting to 144 months in
reflection of his substantial assistance to the Government,
pursuant to 18 U.S.C. § 3553(e).
November 14, 2016, Whiting filed a motion seeking a reduction
in his sentence (ECF No. 432). Whiting asks the court, under
its 18 U.S.C. § 3582(c)(2) authority, to reduce his
sentence pursuant to Amendment 782. Although Amendment 782,
which retroactively reduced all offense levels found in
U.S.S.G. §§ 2D1.1 and 2D1.11 by two, does not apply
to career offenders sentenced under U.S.S.G. §
4B1.1(b)(1), Whiting contends that he was erroneously
designated a career offender and thus Amendment 782 ought to
apply to him. Whiting alternatively asks the court to appoint
his federal public defender, Lisa M. Lorish, as counsel to
pursue a motion seeking resentencing under 28 U.S.C. §
Government agrees that Whiting's career offender
designation was a mistake. However, the Government argues
that Whiting cannot proceed by 18 U.S.C. § 3582(c)(2)
and Amendment 782 because (1) Whiting was sentenced under
U.S.S.G. 4B1.1(b)(1) and thus Amendment 782 is inapplicable;
and (2) 18 U.S.C. § 3582(c)(2) cannot be used to correct
an erroneous career offender designation. Further, the
Government argues that Whiting is time-barred from seeking
relief under 28 U.S.C. § 2255, and that in any event 28
U.S.C. § 2255 does not provide a vehicle to challenge an
erroneous application of the sentencing guidelines.
court 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 subsequently been
lowered by the Sentencing Commission." 18 U.S.C. §
3582(c)(2). "The drug amendment, designated Amendment
782, generally reduces by two levels the offense levels
assigned to the drug quantities described in U.S.S.G. §
2D1.1." United States v. Fritz, No.
2:13-cr-00002-001, 2015 WL 1932945, at *2 (W.D. Va. Apr. 29,
2015), affd, 621 F.App'x 196 (4th Cir. 2015). Yet, as
noted, Whiting was not sentenced pursuant to U.S.S.G. §
2D1.1, but U.S.S.G. § 4Bl.l(b)(1). Amendment 782 is
therefore inapplicable to Whiting.
argues that Amendment 782 ought to apply because he was
designated a career offender erroneously-a point on which all
parties involved seem to agree-and thus should have never
been sentenced pursuant to U.S.S.G. § 4B1.1(b)(1).
Nevertheless, the fact remains that Whiting was sentenced
under U.S.S.G. § 4B1.1(b)(1). Neither 18 U.S.C. §
3582(c)(2) nor Amendment 782 permit the court to
retroactively amend the guidelines pursuant to which Whiting
was sentenced, even if his career offender designation is
acknowledged by all to have been a mistake.
the court cannot reduce Whiting's sentence through 18
U.S.C. § 3582(c)(2) and Amendment 782 as he was
sentenced pursuant to U.S.S.G. § 4B1.1(b)(1), and 18
U.S.C. § 3582(c)(2) does not provide a vehicle for
challenging an erroneous career offender designation. See
Dillon v. U.S., 560 U.S. 817, 831 (2010) (holding
that "§ 3582(c)(2) does not authorize a
resentencing"). Accordingly, the court must deny
Whiting's first request.
to Whiting's alternative request, "in all
proceedings brought under" 28 U.S.C. § 2255
"the court may appoint counsel." 28 U.S.C. §
2255(g). Although the Government contends that 28 U.S.C.
§ 2255 is inapplicable to Whiting's case, its
argument is premature, as Whiting has yet to file any 28
U.S.C. § 2255 petition. The court will therefore appoint
Whiting's federal public defender, Lisa M. Lorish, as
counsel to pursue a motion under 28 U.S.C. § 2255. In
doing so, the court makes no judgment as to the merit or
timeliness of any 28 U.S.C. § 2255 petition subsequently
filed by Whiting.
reasons stated in this Memorandum Opinion, the court will
DENY Whiting's motion to reduce his sentence pursuant to
Amendment 782. The court appoints Lisa M. Lorish as
Whiting's counsel to pursue a motion under 28 U.S.C.
appropriate Order will be Dated this day.
Clerk of the Court is hereby directed to send a certified
copy of this Memorandum Opinion and ...