United States District Court, W.D. Virginia, Charlottesville Division
Franklin Banks, Pro Se Defendant.
P. Jones United States District Judge.
defendant, John Franklin Banks, a federal inmate sentenced by
this court, has filed a motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2), based upon the
two-level reduction in the drug guideline ranges adopted by
Amendment 782 to the U.S. Sentencing Guidelines Manual
(“USSG”) and made retroactive by USSG §
1B1.10(d) (2016). For the reasons that follow, I find that
the motion must be denied.
conviction by a jury of conspiracy to distribute cocaine and
cocaine base and for conducting a continuing criminal
enterprise (“CCE”), 21 U.S.C. §§ 846,
848, the court (Michaels, J.) sentenced Banks on November 4,
1998, to life imprisonment on both counts. On appeal, the
court of appeals vacated the conviction for conspiracy on the
ground that it was a lesser included offense of the crime of
CCE and remanded the case for resentencing. United States
v. Banks, No. 98-4879, 1999 WL 812333, at *1 (4th Cir.
Oct. 12, 1999) (unpublished). Banks was resentenced to life
imprisonment on the CCE count on January 14, 2000. The court
of appeals affirmed. United States v. Banks, No.
00-4116, 2000 WL 1339524 (4th Cir. Sept. 18, 2000)
August 30, 2016, the President commuted Banks' sentence
to 292 months imprisonment. Executive Grant of Clemency, ECF
No. 236. His current projected release date is August 21,
2019. Federal Bureau of Prisons,
https://www.bop.gov/inmateloc/ (last visited Aug. 23, 2017).
He is 54 years old. Id.
granting a sentence reduction pursuant to a guidelines
amendment, the court must engage in a two-step inquiry: (1)
determine whether a reduction is authorized by §
3582(c)(2) and USSG § 1B1.10, and, if so, (2) determine
whether a reduction is warranted in light of the factors
listed in § 3582(a). Dillon v. United States,
560 U.S. 817, 826 (2010). Currently at issue is the first
prong of the analysis - whether Banks is eligible for a
reduction. Under 18 U.S.C. § 3582(c)(2), a court may
grant a motion for a sentence reduction for a defendant who
(1) “has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by
the Sentencing Commission, ” if (2) such reduction is
“consistent with applicable policy statements issued by
the Sentencing Commission.”
Sentencing Commission's policy statements provide that in
applying § 3582(c)(2), the court shall determine the
amended guideline range that would have been applicable to
the defendant if the retroactive amendment had been in effect
at the time of the defendant's sentencing. USSG §
1B1.10(b)(1) (2016). The policy statements further provide
that with one exception, “the court shall not reduce
the defendant's term of imprisonment . . . to a term that
is less than the minimum of the amended guideline range . . .
.” USSG § 1B1.10(b)(2)(A) (2016). The lone
exception relates to an original sentence made pursuant to a
government motion to reflect the defendant's substantial
assistance to authorities, id. at §
1B1.10(b)(2)(B), which exception is not applicable to the
defendant's initial guideline range was calculated on the
basis of the conspiracy offense (Count One), since it
produced the highest offense level. Presentence Investigation
Report (“PSR”) ¶ 18, Aug. 27, 1998, ECF No.
238. That range was largely determined by the quantity of
drugs attributed to the defendant and produced a Base Offense
Level of 38. Id. at ¶ 19. With adjustments,
Banks' Total Offense Level was 44, producing a guideline
range of life imprisonment. Id. at ¶¶ 28,
advised that there was a mandatory minimum sentence of life
imprisonment for the CCE offense (Count Two) under 21 U.S.C.
§ 848(b), which provides for such a sentence in the case
of extremely large enterprises. Id. at ¶ 45. At
resentencing, there was no expressed calculation of the
guideline range for Count Two, the sole remaining conviction.
Resentencing Tr. 15, ECF No. 146. However, where a CCE
mandatory minimum sentence applies, the statutory minimum
shall be the guideline sentence. USSG § 2D1.5 cmt.
these circumstances, the reduction of the drug guideline
offense levels by Amendment 782 would not be applicable to
the defendant. Accordingly, the defendant is not entitled to
a reduction of his sentence under §
separate Order will be entered forthwith.
 The Base Offense Level for a CCE
offense is the greater of 38 or 4 plus the offense level for
the drug quantity applicable to the underlying offense. USSG
§ 2D1.5(a) (2016). Even if the defendant had not been
subjected to a mandatory minimum sentence, and his base
offense level of 38 based on drug quantity was reduced by two
levels, the Base Offense Level pursuant to the CCE guideline
would be 40, providing a guideline range of 292 to 365 months
imprisonment. Since ...