United States District Court, W.D. Virginia, Abingdon Division
Charles Jermaine King, Pro Se Defendant.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, Charles Jermaine King, a federal inmate sentenced
by this court, has filed a Motion for Reduction in Sentence
pursuant to 18 U.S.C. § 3582(c)(2). The motion will be
September 24, 2008, King was indicted for conspiracy to
possess with intent to distribute fifty grams or more of a
mixture or substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A). King proceeded to jury trial with
his codefendants, where he was found guilty.
Presentence Report (“PSR”) was created in
anticipation of sentencing. It recommended that King receive
an enhanced sentence because he qualified as a career
offender based on prior North Carolina drug convictions. PSR
¶¶ 370, 382, 384, ECF No. 137. Because of the
career offender designation, King's advisory guideline
range was 360 months to life incarceration. Id.
sentencing hearing was held on October 19, 2009. I sentenced
King to 180 months incarceration as a variance below the
advisory guideline range, on the ground that he had lesser
culpability in the conspiracy and because the convictions
used to support his career offender status had occurred well
in his past. Hr'g Tr. 39-40, ECF No. 221. King appealed
his conviction, but the Fourth Circuit affirmed. United
States v. Morton, 443 Fed.Appx. 775, 781 (4th Cir. 2011)
(unpublished), cert. denied, 568 U.S. 863 (2012).
filed a § 2255 petition on August 20, 2012, which was
denied. United States v. King, No. 1:08CR00041, 2014
WL 1906695 (W.D. Va. May 13, 2014). King appealed the denial
of the § 2255 motion, but the Fourth Circuit dismissed
the appeal. United States v. King, 585 Fed.Appx. 170
(4th Cir. 2014) (unpublished), cert. denied, 135
S.Ct. 2817 (2015). King thereafter filed another motion under
§ 2255, alleging, among other things, that he had been
erroneously sentenced as a career offender based upon the
Fourth Circuit's decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). I held that this claim had been defaulted.
United States v. King, No. 1:08CR00041, 2017 WL
4253753, at *3 (W.D. Va. Sept. 26, 2017), appeal
dismissed, 722 Fed.Appx. 323 (4th Cir. 2018)
seeking a reduction of his sentence under § 3582(c)(2),
King relies upon Amendments 750 and 782 to the U.S.
Sentencing Guidelines Manual (“USSG”). Amendment
750, effective November 1, 2010, lowered the base offense
levels for crack cocaine offenses. Amendment 782, effective
November 1, 2014, lowered the base offense levels for other
drug crimes. These amendments were made retroactive by the
Sentencing Commission. USSG § 1B1.10(d) (2018). However,
a defendant whose base offense level was calculated under the
career offender guideline is not eligible for reduction under
these amendments. United States v. Foster, No.
1:09-cr-00013-MR-DLH-8, 2017 WL 9480306, at *1 (W.D. N.C.
July 7, 2017) (“Because the Defendant's Guideline
range was determined by his status as a career offender . . .
Amendment 750 is not applicable to his sentence.”);
United States v. Dean, 699 Fed.Appx. 173 (4th Cir.
2017) (unpublished) (“[W]e conclude that Dean is not
entitled to relief because he was sentenced as a career
offender, and the career offender Guideline was not impacted
by Amendment 782.”)
argues that the court should revisit his status as a career
offender. Not only has the court previously ruled that this
argument has been defaulted, but the court is not permitted
under § 3582(c)(2) to change guideline determinations
made at sentencing other than those made retroactive by the
Sentencing Commission. See Dillon v. United States,
560 U.S. 817, 831 (2010) (holding that § 3582(c)(2) does
not permit correction of mistakes in original sentence and
the court must “‘leave all other guideline
application decisions unaffected, ”' quoting USSG
these reasons, the Motion for Reduction in Sentence, EFC ...