The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Victor Carrasquillo has moved to reduce his prison sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706 to the Federal Sentencing Guidelines, which reduced the offense levels for crack cocaine-related offenses. For the reasons stated below, the Court denies Carrasquillo's motion.
On May 5, 2000, Carrasquillo pleaded guilty to one count of conspiracy to possess crack cocaine with intent to distribute. The plea agreement included a preliminary sentencing guideline calculation. The parties agreed that the offense involved more than 1.5 kilograms of crack cocaine, which resulted in a base offense level of 38 under the Sentencing Guidelines. See U.S.S.G. § 2D1.1(a)(1)(3). The parties also agreed to a two-level increase pursuant to Guideline § 2D1.1(b)(1), because a dangerous weapon was possessed in connection with the conspiracy and a three-level reduction under Guideline § 3E1.1 because Carrasquilloaccepted responsibility for his actions. Carrasquillo was considered a career offender under the Guidelines, placing him in criminal history Category VI. U.S.S.G. § 4B1.1. Carrasquillo's adjusted offense level and criminal history category resulted in a Guidelines sentencing range of 360 months to life.
Carrasquillo and the government entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C), now Rule 11(c)(1)(C), in which they agreed that the appropriate sentence included a term of imprisonment between 180 and 240 months. Plea Agreement ¶ 16. Carrasquillo agreed that he could not withdraw his plea if the Court accepted and imposed a sentence within that range. Id. On July 3, 2002, this Court accepted the plea agreement and sentenced Carrasquillo to a 180 month prison term, the lowest sentence possible under the plea agreement.
In 2008, the Sentencing Commission reduced the base offense level for crack cocaine offenses via Amendment 706 to the Sentencing Guidelines. In March 2009, Amendment 706 became applicable retroactively. On February 18, 2009, Carrasquillo filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). On March 4, 2009, he filed an amended motion to address his career offender status. Carrasquillo requests a new sentencing hearing or a reduction in his sentence to reflect the application of the amended crack cocaine sentencing provisions.
1. New Sentencing Hearing
The Seventh Circuit has effectively foreclosed the possibility of a new sentencing hearing with its decision in United States v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009). In Cunningham, the Seventh Circuit ruled that "section 3582 proceedings are not full resentencings." Id. As a result, the Court denies Carrasquillo's request for a new sentencing hearing.
A district court may modify a sentence after judgment has been entered only if the modification is permitted by statute or by Federal Rule of Criminal Procedure 35. 18 U.S.C. § 3582(c)(2); see Cunningham, 554 F.3d at 708. Section 3582(c)(2) permits a court to reduce a term of imprisonment if the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." To be eligible for relief, the defendant must meet two requirements: his term of imprisonment must have been based on a Guidelines sentencing range, and that range must have been subsequently lowered. 18 U.S.C. § 3582(c)(2); see also United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2008); United States v. Poole, 550 F.3d 676, 678-80 (7th Cir. 2008); United States v. Dews, 551 F.3d 204, 208 (4th Cir. 2008). Carrasquillo meets the second requirement but does not meet the first.
There is no dispute that the Sentencing Commission lowered the sentencing range for Carrasquillo's offense after his sentence was imposed. Amendment 706, which took effect on November 1, 2007, generally reduces the base offense level for crack cocaine offenses by two levels. U.S.S.G. § 2D1.1. See U.S.S.G. App. C, Amend. 706. In December 2007, Amendment 706 was added to the list of amendments in Guideline section 1B1.10(c) that may be applied retroactively, effective March 3, 2008. See U.S.S.G. § 1B1.10(c). At the time of Carrasquillo's sentencing, the base offense level for offenses involving more than 1.5 kilograms of crack cocaine was 38, and Carrasquillo's adjusted offense level was 37. Because he was in criminal history Category VI, the recommended guideline sentencing range for Carrasquillo's offense was 360 months to life. Following the enactment of Amendment 706, the base offense level for offenses involving more than 1.5 kilograms of crack cocaine is 36. With the adjustments stipulated in the plea agreement and Carrasquillo's criminal history, the Guidelines now provide for a range of 292 to 365 months imprisonment for the offense to which Carrasquillo pled guilty. Carrasquillo clearly satisfies the second requirement under § 3582(c)(2).
The government argues that Carrasquillo does not meet the first requirement under § 3582(c)(2) because his sentence was based on a Rule 11(c)(1)(C) plea agreement and not the sentencing guidelines. Two circuits have ruled that sentences imposed under a valid Rule 11(c)(1)(C) plea agreement may not reduced under to § 3582(c)(2) because such sentences are not based on the sentencing guidelines. United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996); United States v. Peveler, 359 F.3d 369, 378-79 (6th Cir. 2004). In Trujeque, the Tenth Circuit affirmed the district court's decision that a defendant sentenced under a Rule 11(c)(1)(C) plea was not eligible for a sentence reduction following an amendment by the Sentencing Commission. Trujeque, 100 F.3d at 871. The court found that the defendant's sentence was not based on a sentencing range that had been lowered by the Sentencing Commission because the sentence was based on a Rule 11(c)(1)(C) plea agreement. Id. In Peveler, the Sixth Circuit affirmed the denial of a motion for reduction of sentence based on an amendment to weapons enhancement under the sentencing guidelines. Peveler, 359 F.3d at 379. The court held that absent an agreement of the parties, the plain language of Rule 11(c)(1)(C) generally precludes the district court from altering the parties' agreed sentence under 18 U.S.C. § 3582. Id. at 378-79.
In Dews, the Fourth Circuit declined to follow the Peveler and Trujeque courts' determination that a sentence imposed under a Rule 11(c)(1)(C) plea agreement is never "based on" the Sentencing Guidelines. Dews, 551 F.3d at 209. The Fourth Circuit held that a sentence could be both a Guidelines-based sentence eligible for treatment under section 3582(c)(2) and a sentence stipulated by the parties in a plea agreement pursuant to Rule 11(e)(1)(C). Id. To determine whether a sentence is Guidelines-based, the court must conduct an analysis to determine whether the sentencing court, in fact, based its decision on the Sentencing Guidelines. The court determined that the original sentences were based on the Sentencing Guidelines because the "record [was] replete with evidence that the sentencing guidelines played a central role in the district judge's sentencing of both appellants." Id. at 208-09. The court ...