The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Tuesday, 10 April, 2012 02:13:25 PM Clerk, U.S. District Court, ILCD
This matter comes before the Court on Defendant Demetrius D. McCullough's Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 295) and supplemental Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 297). Defendant also filed a Motion for Appointment of Replacement Counsel (d/e 298). For the reasons set forth below, Defendant's Motion for Appointment of Replacement counsel is DENIED and his Motions for a reduced sentence are DISMISSED for lack of subject matter jurisdiction.
In July 2000, a jury found Defendant guilty of one count of conspiracy with intent to distribute controlled substances (Count 1) and six counts of distribution of cocaine base (crack) (Counts 7, 8, 9, 10, 13, 14). In December 2000, at the sentencing hearing, the Court adopted presentence investigation report (PSR) with respect to the guideline range.
The PSR held Defendant accountable for 1,221.30 grams of crack and 1,052.76 grams of cocaine powder. Pursuant to United States Sentencing Guideline (U.S.S.G.) § 2D1.1, the quantities of powder and crack cocaine were converted to marijuana, resulting in a total of 24,636.55 kilograms of marijuana. This resulted in an offense level of 36. With a two-level enhancement for possession of a firearm, Defendant's total offense level was 38.
Because Defendant was at least 18 years old when he committed the offenses and had two prior felony convictions for either a crime of violence or a controlled substance, he was considered a career offender pursuant to U.S.S.G. § 4B1.1. As a career offender, Defendant's offense level would have been 37. See U.S.S.G. § 4B1.1 (1998) (providing for an offense level of 37 where the offense statutory maximum is life). However, because the offense level from the career offender table was less than the otherwise applicable offense level, the offense level from the career offender table did not apply. See U.S.S.G. § 4B1.1 ("If the offense level for a career offender from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply.").
The PSR further provided that, based on his criminal history, Defendant's criminal history category would have been a Category V. However, "[a] career offender's criminal history category in every case shall be Category VI." U.S.S.G. § 4B1.1(b). With a total offense level of 38 and a criminal history of VI, Defendant's sentencing range was 360 months to life. The Court sentenced Defendant to 420 months on Count 1 and 260 months on each of Counts 7, 8, 9, 10, 13, and 14, to run concurrently.
In June 2008, Defendant filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offenses. The Court denied Defendant's request because Defendant was sentenced as a career offender and the retroactive amendment (Amendment 706) did not apply to Defendant. Defendant appealed, and the Seventh Circuit affirmed. United States v. McCullough, No. 08-3779 (7th Cir. 2009) (unpublished disposition) (holding that Amendment 706, "which lowered the base offense level for crack cocaine offenses under U.S.S.G. §2D1.1 . . . [did] not have the effect of lowering [Defendant's] applicable guideline range and provides no benefit to career offenders").
In February 2012, Defendant filed his Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 295). This Court appointed the Federal Defender for the Central District of Illinois to represent Defendant on his Motion.
On February 27, 2012, appointed counsel moved to withdraw, noting that Defendant was found to be a career offender. Counsel asserted that under the old and new amended guidelines, Defendant's guideline range was the same, and he was therefore ineligible for a reduction in sentence. On February 28, 2012, this Court granted counsel's motion to withdraw and gave Defendant additional time to supplement his Motion or file a new Motion.
On March 22, 2012, Defendant filed a Notice of Appeal. In the Notice of Appeal, Defendant asserted that his Motion for Reduction of Sentence was pending before this Court and that should the motion be denied, he would like to appeal and be appointed counsel. The clerk of the court treated this document as an appeal of the Court's order granting counsel's motion to withdraw. This Court has received notice from the Seventh Circuit of docketing the record on appeal. See d/e 301.
On March 23, 2012, Defendant filed a supplemental Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 297). In the Motion, Defendant states that he believes he has a "viable and tenable legal issue that affords him a chance for eligibility for this reduction" and requests replacement counsel. ...