United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR RETROACTIVE APPLICATION OF
SENTENCING GUIDELINES TO DRUG OFFENSE UNDER 18 U.S.C. §
Page Hood Chief United States District Judge.
matter is before the Court on Defendant Jeffrey Lanum's
Motion for Modification or Reduction of Sentence Pursuant to
18 U.S.C. § 3582(c), Guideline Amendment No. 782. On
January 26, 2010, Lanum entered a plea of guilty to three
counts of the Indictment alleging: Felon in Possession, 18
U.S.C. § 922(g) (Count One); Possession with Intent to
Distribute Controlled Substance, 21 U.S.C. § 841(a)(1);
and, Using, Carrying or Possessing a Firearm During and in
Relation to a Drug Trafficking Crime, 18 U.S.C. § 924.
(ECF No. 13, Plea Agreement)
March 13, 2010, the Court imposed a sentence of 41 monts of
imrpisonment on Coutns One and Two, to run concurrrent, and
60 months on Count Three, to run consecutive to the term of
imprisonment sentence imposed on Counts One and Two, followed
by a term of three years of supervised release on each county
to run concurrent. (ECF No. 15, Judgment)
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). 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 drug guidelines. Id. at 422-23. 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).
case, Defendant was sentenced to a term of 41 months on
Counts 1 (felon in possession) and 2 (possession with intent
to distribute), to run concurrent, and 60 months on Count 3
(using, carrying or possessing a firearm), to run consecutive
to Counts 1 and 2. Amendment 782 has no effect on
Defendant's sentence since the ulitmate sentence imposed,
was not based on the drug quantity computation, but was based
on other crimes involving firearms in Counts 1 and 3, under
U.S.S.G. § 2K2.1. See, United States v.
Keller, No. 09-20303, 2016 WL 10592323 (E.D. Mich. Feb.
IT IS ORDERED that Defendant Jeffrey Lanum's Motion for
Retroactive Application of Sentencing Guildines under 18