United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR RETROACTIVE APPLICATION OF
SENTENCING GUIDELINES UNDER 18 U.S.C. § 3582
PAGE HOOD Chief United States District Judge.
matter is before the Court on Defendant Roderick Henry's
Motion for Retroactive Application of Sentencing Guidelines
to Drug Offense under 18 U.S.C. § 3582(c)(2). Defendant
Henry seeks to reduce his sentence based on the United States
Sentencing Commissions' Amendment 782. For the reasons
set forth below, the Court denies Defendant's motion.
was sentenced to 180 months term of imprisonment for his
conviction of conspiracy to possess with intent to distribute
more than five kilograms of cocaine, followed by 5 years of
supervised release. (ECF No. 263, Judgment)
applicable Sentencing Guidelines are the ones "in effect
on the date the defendant is sentenced." 18 U.S.C.
§ 3553(a)(4)(A)(ii). A federal court "may not
modify a term of imprisonment once it has been imposed."
Dillon v. U.S., 560 U.S. 817, 819 (2010)(quoting 18
U.S.C. § 3582(c)). An exception is provided "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,"
if such reduction is consistent with applicable policy
statements issued by the Sentencing Commission. Id.
(quoting 18 U.S.C. § 3582(c)(2)). "When the
Commission makes a Guideline amendment retroactive, 18 U.S.C.
§ 3582(c)(2) authorizes the trial court to reduce an
otherwise final sentence that is based on the amended
provision." Id. at 821. To satisfy the
requirements for a sentence reduction under 18 U.S.C. §
3582(c)(2), "a guideline amendment must have the effect
of lowering the defendant's applicable guideline
range." United States v. Riley, 726 F.3d 756,
758 (6th Cir. 2013). An applicable guideline range is
"the range that applies before the sentencing court
grants any discretionary departures." United States
v. Pembrook, 609 F.3d 381, 387 (6th Cir. 2010). A
defendant subject to a statutory mandatory minimum sentence
is not eligible for reduction if the amendment does not lower
a defendant's applicable guideline range. United
States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009). A
defendant is not eligible for reduction where the original
sentence was based on the career-offender guidelines and not
the revised guidelines. Id. at 422-23.
1987, the United States Sentencing Commission adopted a 100
to 1 ratio with regards to treating every gram of crack
cocaine as the equivalent of 100 grams of powder cocaine when
it first promulgated the United States Sentencing Guidelines
("USSG"). Kimbrough v. United States, 522
U.S. 85 (2007). In 2007, the Commission amended the
Guidelines to reduce by two levels the base offense level
associated with each quantity of crack cocaine. See USSG
Supp. App. C, Amdt. 706 (effective Nov. 1, 2007). In 2008,
the Commission made the amendment retroactive. Id.,
Amdt. 713 (effective Mar. 3, 2008).
2010, Congress enacted the Fair Sentencing Act
("FSA"), Pub. L. No. 111-220, § 2, 124 Stat.
2372 (2010), and the Commission promulgated amendments to the
Guidelines to lower penalties for crack cocaine convictions.
The FSA increased the amount of crack cocaine necessary to
trigger the mandatory minimum sentences for drug offenders.
21 U.S.C. § 841(b)(1). The Sixth Circuit Court of
Appeals, in an en banc decision, held that teh
FSA's "new mandatory minimums do not apply to
defendants sentenced before it took effect," and neither
the United States Constitution nor § 3582(c)(2) provides
a basis for circumventing this interpretation. United
States v. Blewett, 746 F.3d 647, 650 (6th Cir.
2013) (en banc), cert denied, 134 S.Ct.
2014, the Commission issued Amendment 782 to the Sentencing
Guidelines, which reduced by two levels the base offense
levels for various drug crimes that trigger the statutory
mandatory minimum penalties under U.S.S.G. §§ 2D1.1
and 2D1.11. See USSG App. C. Amend. 782, at 64-71 (Supp.
2014). The Commission gave Amendment 782 retroactive effect.
See USSG App. C. Amend. 788, at 86-87 (Supp. 2014).
the Commission makes a Guideline amendment retroactive, 18
U.S.C. § 3582(c)(2) authorizes the trial court to reduce
an otherwise final sentence that is based on the amended
provision. Section 3582(c)(2) permits a court to reduce the
term of imprisonment of a defendant who has been senteced
based on a sentencing range that has subsequently been
lowered by the Commission. 18 U.S.C. § 3582(c)(2).
Amendment 782 does not lower a defendant's sentence based
on a sentencing range involving other crimes, such as those
involved firearms, since the guideline range is not affected
by the amendment. See United States v. Prater, 766
F.3d 501, 507 (6th Cir. 2014); United States v.
Webb, 760 F.3d 513, 520 (6th Cir. 2014); United
States v. Braden, Nos. 15-5294 & 15-5465, 643
Fed.Appx. 531, 2016 WL 909359 (6th Cir. Mar. 10, 2016).
Defendant's case, the Court sentenced Defendant to 180
months, well below the applciable guideline range of 324 to
405 months based on a Total Offense Level of 41 and Criminal
History Category I. If the Court were to consider the
two-level reduction of the offense level under Amendment 782,
this would give Defendant a Total Offense Level of 39,
Criminal History Category I, with a guideline range of 262 to
327 months, which is a much higher revised sentence than the
sentence of 180 months imposed by the Court. Defendant is not
eligible under Amendment 782 since the Court imposed a
variance and non-guideline sentence under 18 U.S.C. §
IT IS ORDERED that Defendant Roderick Henry's Motion for
Retroactive Application of Sentencing Guildines under 18