The opinion of the court was delivered by: Herndon, Chief Judge
Anthony W. Easter was sentenced by this Court on May 19, 2006, to a term of 108 months after a plea of guilty to the indictment (Docs. 46, 61). On March 3, 2009, Easter filed a motion for a reduction of sentence pursuant to the provisions of 18 U.S.C. § 3582(c)(2) (See Doc. 77). The Court appointed counsel to represent Easter, and counsel has now moved to withdraw on the basis that he can make no non-frivolous arguments in support of a reduction pursuant to 18 U.S.C. § 3582(c)(2) (Doc. 84). In response to counsel's motion to withdraw, Easter has filed a motion for release from judgment pursuant to Rule 60(b) (Doc. 86) and a response in opposition to counsel's motion (Doc. 87).
Section 3582 (c)(2) allows the Court to reduce a defendant's previously imposed sentence where "a defendant...has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o)." In doing so, the Court must consider the factors set forth in 18 U.S.C. § 3553(a) and must ensure that any reduction "is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Thus, a defendant urging a sentence reduction under § 3582(c)(2) must satisfy two criteria: (1) the Sentencing Commission must have lowered the applicable guideline sentencing range, and (2) the reduction must be consistent with applicable policy statements issued by the Sentencing Commission. If the defendant cannot satisfy the first criterion, the Court has no subject matter jurisdiction to consider the reduction request. United States v. Lawrence, 535 F.3d 631, 637-38 (7th Cir. 2008); see United States v. Forman, 553 F.3d 585, 588 (7th Cir. 2009), cert. denied sub nom McKnight v. United States, 129 S.Ct. 1924 (2009).
Easter is not entitled to a reduction in his sentence because he cannot satisfy the first criterion of that statute; he was not "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o)." 18 U.S.C. § 3582(c)(2). Amendments 706 and 711 amended U.S.S.G. § 2D1.1(c) as of November 1, 2007, to lower by two points the base offense levels associated with various amounts of crack cocaine. The Sentencing Commission amended U.S.S.G. § 2D1.1(c) intending to alter the disparity in sentences involving crack cocaine and sentences involving powder cocaine. But Easter's base offense level was controlled solely by the amount of powder cocaine; his relevant conduct for guideline purposes was based only on the powder cocaine. The Sentencing Commission did not lower the offense level for powder cocaine, only crack cocaine. Thus, there is no change in the offense level as Easter's offense level was based on the amount of powder cocaine distributed. Therefore, Easter's guideline range has not been lowered, and he cannot satisfy the first criterion under 18 U.S.C. § 3582(c)(2) for obtaining a sentence reduction.
The Court has confirmed the representations in counsel's motion to withdraw and agrees that Easter is not entitled to a reduction in sentence for the reasons just mentioned. It would serve no purpose to appoint another lawyer to represent Easter on this issue as suggested in Easter's response. Nor is this Court authorized to revisit his sentence entirely as Easter urges.*fn1
The Court therefore GRANTS counsel's motion to withdraw (Doc. 84), and DISMISSES the motion for sentence reduction (Doc. 77) and release from judgment (Doc. 86) for lack of jurisdiction.
David R Herndon Chief Judge United States ...