The opinion of the court was delivered by: Richard Mills, District Judge:
We deal here with Amendment 506 to the Sentencing Guidelines
Commentary to U.S.S.G. § 4B1.1.
Defendant has filed a Pro se Motion For Resentencing pursuant
to 18 U.S.C. § 3582(c)(2) based on Amendment 506.
This Court sentenced Scott Sheppard to 294 months in prison
after he pled guilty to conspiracy to distribute cocaine base
(21 U.S.C. § 846) and distribution of cocaine base (21 U.S.C. § 841(a)).
The sentence was calculated based on an offense level
of 34 and a criminal history category of VI which resulted in a
range of 262 to 327 months.
Sheppard's criminal history level is VI because he is a
"career offender" under U.S.S.G. § 4B1.1. Moreover, because he
had committed a prior drug offense, 21 U.S.C. § 841(b)(1)(C) is
applicable and the maximum possible penalty is increased from
twenty years to thirty years. On appeal, Sheppard
unsuccessfully argued that applying both § 4B1.1 and
21 U.S.C. § 841(b)(1)(C) based on the same prior convictions constituted
an improper double enhancement. United States v. Sheppard,
33 F.3d 56 (7th Cir. 1994).
Nevertheless, the Sentencing Commission was troubled by the
interplay between § 4B1.1 and 21 U.S.C. § 841(b)(1)(C). Thus,
effective November 1, 1994, commentary to § 4B1.1 was amended
to prevent the double enhancement. U.S.S.G.Amend. 506.
Amendment 506 changes the definition of "Offense Statutory
Maximum" to include the language "not including any increase in
that maximum term under a sentencing enhancement provision that
applies because of the defendant's prior criminal record."*fn1
According to the official explanation of Amendment 506,
"[t]his amendment defines the term `offense statutory maximum'
in § 4B1.1 to mean the statutory maximum prior to any
enhancement based on prior criminal record. . . . [The
amendment] avoids unwarranted double counting as well as
unwarranted disparity associated with variations in the
exercise of prosecutorial discretion in seeking enhanced
penalties based on prior convictions." U.S.S.G. Amend. 506,
The Government concedes that if it is applicable, Amendment
506 should be applied retroactively to Defendant Sheppard.
See Stinson v. United States, ___ U.S. ___, ___, 113 S.Ct.
1913, 1919, 123 L.Ed.2d 598 (1993) ("Amended commentary is
binding on the federal courts even though it is not reviewed by
Congress, and prior judicial constructions of a particular
guideline cannot prevent the Commission from adopting a
Whether Amendment 506 should be given binding effect is an
issue of first impression. Thus, the Court is guided by
principles of statutory construction and the first and
"large-bore howitzer" of statutory construction is that a court
must apply the plain meaning of a statute as written.
Matter of Udell, 18 F.3d 403, 410 n. 1 (7th Cir. 1994) (Flaum,
J., concurring). See Connecticut Nat. Bank v. Germain,
503 U.S. 249, 254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("We
have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a
statute what it says there. When the words of a statute are
unambiguous, then this first canon is also the last: `judicial
inquiry is complete.'") (citations omitted).
The meaning of 28 U.S.C. § 994(h) is clear on its face. See
United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir. 1992).
It specifically directs the Commission that it "shall assure
that the guidelines specify a sentence to a term of
imprisonment at or near the maximum term authorized. . . ."
(emphasis added). Therefore, because 21 U.S.C. § 841(b)(1)(C)
unambiguously states that a person convicted of an applicable
drug offense after having previously been convicted of one or
more applicable drug offenses "shall be sentenced to a term of
imprisonment of not more than 30 years," Amendment 506 is
clearly inconsistent with 28 U.S.C. § 994(h). ...