United States District Court, W.D. Virginia, Roanoke.
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
Darnell Palmer has filed a motion for reduction of sentence
under 18 U.S.C. § 3582(e)(2) based on Amendment 782 to
the United States Sentencing Guidelines. For the following
reasons, the defendant's motion must be denied.
January 7, 2010, a grand jury in the Western District of
Virginia returned a multi-count indictment against Palmer.
Counts Two, Three, and Four charged the defendant with
distribution of heroin, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). Count Five charged the defendant
with possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On
October 27, 2010, Palmer entered pleas of guilty to those
four counts, pursuant to a written plea agreement. As
permitted by Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, the parties agreed that Palmer would
receive a total term of imprisonment of 188 months. Palmer
also "stipulate[d] and agree[d] that because of [his]
prior criminal record [he would be] treated as a 'Career
Offender' under Guideline Section 4B1.1." Plea Ag.
4, Dkt. No. 48.
to sentencing, a probation officer prepared a presentence
investigation report ("PSR"). In the PSR, the
probation officer attributed more than 100 but less than 400
grams of heroin to the defendant. That particular drug
quantity and type resulted in a base offense level of 26
under United States Sentencing Guidelines
("U.S.S.G.") § 2D 1.1 (c) (2009). However,
Palmer was also found to qualify as a career offender under
U.S.S.G. § 4B1.1. As a result of the career offender
designation, the base offense level calculated under §
2D 1.1 was superseded by the higher offense level determined
by the career offender provision. See U.S.S.G. § 4B
1.1(b) (providing that "the offense level from the table
in this subsection shall apply" if it "is greater
than the offense level otherwise applicable").
Application of the career offender provision ultimately
resulted in a total offense level of 30, a criminal history
category of VI, and an advisory guideline range of
imprisonment of 168 to 210 months.
appeared for sentencing on October 27, 2010. At that time,
the court adopted the probation officer's determination
that Palmer qualified for sentencing under the career
offender provision of the Guidelines. The court also accepted
the plea agreement. The court ultimately imposed a total term
of imprisonment of 188 months, as agreed to by the parties
under Rule 11(c)(1)(C).
September 17, 2015, Palmer filed a pro se motion for
reduction in sentence under 18 U.S.C. § 3582(c)(2). This
statute authorizes the court to reduce a defendant's term
of imprisonment if the term was "based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission," and "if such a reduction is consistent
with the applicable policy statements issued by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2).
Palmer relied on Amendment 782 to the Sentencing Guidelines,
which reduced the base offense levels assigned to most drug
quantities in § 2D 1.1 by two levels. The court denied
the motion, concluding that Palmer was not eligible for a
sentence reduction under § 3582(c)(2).
Palmer was sentenced under a Rule 11(c)(1)(C) agreement, the
court looked to Justice Sotomayor's concurring opinion in
Freeman v. United States, 564 U.S. 522 (2011) to
determine whether Palmer was eligible for relief under §
3582(c)(2). See United States v. Brown, 653 F.3d
337, 340 (4th Cir. 2011) ("Under the fragmented opinion,
Justice Sotomayor's rationale becomes the Court's
holding."), abrogated by Hughes v. United
States, U.S., 138 S.Ct. 1765 (2018). "Justice
Sotomayor agreed with the dissent that a sentence imposed
pursuant to a Rule 11(c)(1)(C) plea agreement is based on the
agreement and, therefore, § 3582(c)(2) relief is usually
not available." Brown, 653 F.3d at 359.
"However, Justice Sotomayor established an exception to
this general rule - where the plea agreement itself expressly
refers to and relies upon a Guidelines sentencing
range." Id; see Freeman, 564 U.S. at 534
(Sotomayor, J., concurring) ("[I]f a (C) agreement
expressly uses a Guidelines sentencing range applicable to
the charged offense to establish the term of imprisonment,
and that range is subsequently lowered by the United States
Sentencing Commission, the term of imprisonment is 'based
on' the range employed and the defendant is eligible for
sentence reduction under § 3582(c)(2)."). Because
Palmer's plea agreement did not expressly reference the
Guidelines in establishing the agreed-upon term of
imprisonment, the court concluded that Palmer was not
eligible for relief under § 3582(c)(2).
through counsel, has filed a second motion for reduction of
sentence pursuant to § 3582(c)(2) and Amendment 782 to
the Sentencing Guidelines. Palmer asserts two primary
arguments in support of his motion. First, relying on the
Supreme Court's recent decision in Hughes,
Palmer argues that the 188-month sentence imposed by the
court was based on his guideline range of imprisonment.
Second, Palmer argues that even though his guideline range
was ultimately derived from the career offender provision,
the drug quantity provisions of the Sentencing Guidelines
were nonetheless part of the framework that the court
considered in imposing his sentence. For the following
reasons, the court concludes that although Palmer's
calculated guideline range of 168 to 210 months was a basis
for the sentence imposed by the court, he is not eligible for
relief under § 3582(c)(2) since that range has not been
lowered by the Sentencing Commission.
motion is based entirely on the Supreme Court's recent
decision in Hughes. In that case, the Court
"resolve[d] the uncertainty that resulted from [its]
divided decision in Freeman," and held that a
sentence imposed pursuant to a Rule 11(c)(1)(C) agreement
"is 'based on' the defendant's Guidelines
range so long as that range was part of the framework the
district court relied on in imposing the sentence or
accepting the agreement." Hughes, 13 8 S.Ct. at
1775. In reaching its decision, the Supreme Court emphasized
that "[t]he Sentencing Reform Act requires a district
court to calculate and consider a defendant's Guidelines
range in every case," Id. (citing 18 U.S.C.
§ 3553(a)), and that "[t]he Sentencing Guidelines
prohibit district courts from accepting [Rule 11(c)(1)(C)]
agreements without first evaluating the recommended sentence
in light of the defendant's Guidelines range,"
Id. at 1776 (citing U.S.S.G. § 6B1.2(c)).
Consequently, "in the usual case the court's
acceptance of a Type-C agreement and the sentence to be
imposed pursuant to that agreement are 'based on' the
defendant's Guidelines range." Id. In the
case before it, the district court "calculated
Hughes' sentencing range and imposed a sentence that the
court deemed 'compatible' with the Guidelines."
Id. at 1778. "Thus, the sentencing range was a
basis for the sentence" that the district court imposed.
Id. Because "[t]hat range ha[d]
'subsequently been lowered by the Sentencing
Commission'" through Amendment 782, the Supreme
Court concluded that Hughes was eligible for relief under
with the Supreme Court's reasoning in Hughes,
the court concludes that Palmer's sentencing range under
the advisory Guidelines was a basis for the term of
imprisonment imposed in his case. In the statement of reasons
accompanying the judgment, the court determined that Palmer
was subject to a guideline range of imprisonment of 168 to
210 months, and the court expressly noted that Palmer's
188-month sentence was "within [the] advisory guideline
range." Statement of Reasons 1-2, Dkt. No. 52. Thus,
Palmer's guideline range was part of the framework that
the court considered in determining an appropriate sentence,
and his sentence was therefore "based on" that
range. Hughes, 13 8 S.Ct. at 1775. The mere fact
that the parties agreed to a particular sentence under Rule
11(c)(1)(C) without referencing the Guidelines does not
preclude Palmer from seeking relief under § 3582(c)(2).
Id. at 1774-78.
for Palmer, however, that does not end the matter. As
indicated above, § 3582(c)(2) authorizes the court to
reduce a defendant's sentence only if the
defendant was "sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by
the Sentencing Commission," and if "such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission." 18 U.S.C. §
3582(c)(2). For the following reasons, the court concludes
that neither statutory requirement is satisfied in the
unlike Hughes, the sentencing range calculated under
the Guidelines in the instant case has not been subsequently
lowered by the Sentencing Commission. As noted above, Palmer
was designated as a career offender under U.S.S.G. §
4B1.1. Because of that designation, Palmer's offense
level and resulting sentencing range were derived from the
career offender table in § 4B1.1, rather than the drug
quantity table in § 2D 1.1. Amendment 782, on which
Palmer now relies, "did not lower the offense levels
applicable to career offenders" in § 4B1.1.
United States v. Akers, 892 F.3d 432, 434 (D.C. Cir.
2018). Instead, "it impacted only offense levels
calculated under the drug trafficking guideline, U.S.S.G.
§ 2D1.1." Id.; see also United States
v. Thomas, 775 F.3d 982, 983 (8th Cir. 2014)
("Amendment 782 amended § 2D1.1. It did not lower
the sentencing range established for a career offender by
§ 4B 1.1."). As a result of Palmer's career
offender designation, § 2D 1.1 ultimately "played
no role in determining [his] sentencing range." Akers,
892 F.3d at 434. Consequently, Palmer is not eligible for a
reduction under § 3582(c)(2), since the "sentencing
range" on which his term of imprisonment was based was
not "subsequently ... lowered" by Amendment 782. 18
U.S.C. § 3582(c)(2); see also United States v.
Dean. 699 Fed.Appx. 173 (4th Cir. 2017) ("[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.");
United States v. Sanders, 633 Fed.Appx. 129, 130
(4th Cir. ...