The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is defendant Brandon Price's motion for immediate release based upon retroactive application of sentencing guidelines (Doc. 70). On July 31, 2012, defendant filed his motion, requesting the Court to reduce his sentence pursuant to 18 U.S.C. § 3582(c), U.S.S.G. § 2D1.1, as revised effective November 1, 2011, and Dorsey v. United States, 132 S. Ct. 2321 (2011). The government agrees that defendant is entitled to a sentence reduction based upon Dorsey, but contends that it is unclear whether 18 U.S.C. § 3582(c)(2) allows for re-sentencing below a statutory mandatory minimum. As such, the government submits that defendant could seek relief from the statutory mandatory minimum sentence pursuant to 28 U.S.C. § 2255, which affords a remedy to a defendant if a "sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Id. at (a). Nevertheless, the government concludes that whether through § 3582(c)(2) or § 2255(a), the government agrees that defendant should be re-sentenced under the statutory and guidelines provisions of the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (the "Act"). For the reasons that follow, defendant's motion (Doc. 70) is granted.
On August 20, 2008, a one count indictment charging possession with intent to distribute cocaine base within 1000 feet of a school was filed against defendant. (Doc. 1). A superseding indictment alleging the same count was filed on October 22, 2008. (Doc. 14). On December 4, 2009, defendant entered into a plea agreement with the government whereby he agreed to plead guilty in this case, and the government agreed to recommend a sentence at the low end of the sentencing range. (Doc. 53).*fn1 That same day, defendant's guilty plea was entered and his sentencing was scheduled. Eventually, after being continued, defendant's sentencing was set for September 24, 2010.
Until August 3, 2010, "the relevant statute imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one-hundredth that amount of crack cocaine." Dorsey, 132 S.Ct. at 2326. "It imposed, for example, the same 5-year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack." Id.
On August 3, 2010, the Fair Sentencing Act was enacted. "The Act increased the drug amounts triggering mandatory minimums for crack trafficking offense from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively)." Dorsey, 132 S.Ct. at 2329. "The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18-to-1." Id. "The Act also eliminated the 5-year mandatory minimum for simple possession of crack." Id.
"Further, the Fair Sentencing Act instructed the Commission to make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law." Id. (internal quotations omitted). "And it directed the Commission to promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days after the new Act took effect." Id. (internal quotations omitted).
On September 24, 2010, defendant was sentenced to 60 months' imprisonment followed by 8 years of supervised release after pleading guilty to one count of possession with intent to distribute cocaine base within 1000 feet of a school. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), & 860. (Doc. 68). In sentencing defendant, the Court adopted the presentence investigation report prepared by defendant's probation officer, who used the 2009 edition of the Guidelines to calculate defendant's offense level. Utilizing the findings therein the Court found a total offense level of 23 and a criminal history category of I. This resulted in a guideline range of 46 to 57 months. There was, however, a mandatory minimum sentence of 60 months under the statute prior to the enactment of the Act, which Seventh Circuit case law held was applicable at that time. As a result, the Court sentenced defendant to 60 months' imprisonment, the statutory mandatory minimum, along with 8 years of supervised release.
On October 27, 2010, the Commission gave notice of "promulgated conforming emergency Guidelines amendments that became effective November 1, 2010." Dorsey, 132 S.Ct. at 2329 (citing 75 Fed. Reg. 66188 (2010)). "A permanent version of those Guidelines amendments took effect on November 1, 2011." Dorsey, 132 S.Ct. at 2329. Amendment 750 re-promulgated as permanent the temporary, emergency amendment (effective November 1, 2010), that implemented the emergency directive in the Act, which reduced the statutory penalties for cocaine base ("crack cocaine") offenses, eliminated the statutory mandatary minimum sentence for simple possession of crack cocaine, and contained directives to the Commission to review and amend the guidelines to account for specified aggravating and mitigating circumstances in certain drug cases. U.S. SENTENCING GUIDELINES MANUAL app. C, amend 750 (2011). "The quantity threshold required to trigger the 5-year mandatory minimum term of imprisonment was increased from 5 grams to 28 grams, and the quantity threshold required to trigger the 10-year mandatory minimum term of imprisonment was increased from 50 grams to 280 grams." Id. Appendix C does provide, however, that "some offenders are sentenced at the statutory mandatory minimum and therefore cannot have their sentences lowered by an amendment to the guidelines." Id. (citing U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(b) (1989)) (Sentencing on a Single Count of Conviction)). Section 5G1.1(b) provides that "[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guidelines range, the statutorily required minimum sentence shall be the guideline sentence." U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(b) (1989). Amendment 750 further states that "[o]ther offenses are sentenced pursuant to § § 4B1.1 (Career Offender) and 4B1.4 (Armed Career Criminal), which result in sentencing guideline ranges that are unaffected by a reduction in the Drug Quantity Table." U.S. SENTENCING GUIDELINES MANUAL app. C, amend 750 (2011).
Then, on June 21, 2012, the United States Supreme Court decided Dorsey, which held that the Act's "new, more lenient mandatory minimum provisions do apply to those pre-Act offenders," "who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3." Id. at 2326. Further, the Court held that Act's lower minimums apply to those who committed an offense prior to August 3, 2010, but before November 1, 2010, a period after the new Act's effective date but before the new Guidelines first took effect. Id. at 2335-36. Thus, there is no question that defendant should have been sentenced under the Act. Under the Act, defendant's guideline range is between 24 to 30 months, followed by at least 6 years of supervised release. The five-year mandatory minimum that applied for simple possession and the quantity threshold five-year mandatory minimum no longer apply to defendant under the Act because he possessed less than 28 grams of crack cocaine. The only question that remains is whether this Court has jurisdiction to amend defendant's sentence, which was based on a statutory mandatory minimum that has subsequently been held to no longer apply to defendant, and if so, whether the Court chooses, in its discretion, to lower defendant's sentence. See United States v. Cunningham, 554 F.3d 703, 707 (7th Cir. 2009) ("[A] section 3582(c)(2) modification is discretionary, even for a defendant whose Guideline range has been retroactively lowered."). Defendant did not appeal the Court's sentence, consistent with the bargained for waiver of appeal in the plea agreement.
"[T]here is no 'inherent authority' for a district court to modify a sentence as it pleases; indeed a district court's discretion to modify a sentence is an exception to the statute's general rule that 'the court may not modify a term of imprisonment once it has been imposed.'" Cunningham, 554 F.3d at 708 (quoting 18 U.S.C. § 3582(c)). "When Congress granted district courts discretion to modify sentences in section 3582(c)(2), it explicitly incorporated the Sentencing Commission's policy statements limiting reductions." Cunningham, 554 F.2d at 708 (citing United States v. Walsh, 26 F.3d 75, 77 (8th Cir. 1994)). "Thus, the Commission's policy statements should for all and intents and purposes be viewed as part of the statute." Cunningham, 554 F.2d at 708. "The policy statements make clear that section 3582(c)(2) proceedings are not full resentencings and may not result in a sentence lower than the amended guideline range (unless the defendant's original sentence was lower than the guideline range)." Id. (citing U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(2)(A)). "Indeed, mandatory minimum sentences--which cabin the district court's discretion with regard to section 3553(a) factors--have been upheld as constitutional." Cunningham, 554 F.2d at 708 (citing Harris v. United States, 536 U.S. 545, 565-68 (2002)).
A defendant need not be present to correct or reduce a sentence under § 3582(c). FED. R. CRIM. P. 43(b)(4). Indeed, "[h]ow a district judge elects to consider a § 3582(c) motion to reduce a sentence is largely a matter of discretion." United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999). A judge can re-sentence under a new guideline on its own initiative, without a motion by the defendant. United States v. Taylor, 520 F.3d 746, 748 (7th Cir. 2008) (citing 18 U.S.C. § 3582(c)).
"Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove unjustified." Freeman v. United States, 131 S.Ct. 2685, 2690 (2011). "There is no reason to deny § 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range." Id. The policy statement that applies to § 3582(c)(2) motions "instructs the district court in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations in place." Id. (citing U.S.S.G. § 1B1.10(b)(1)). "[Section] 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement." Freeman, 131 S.Ct. at 2692-93. Section 3582(c)(2) contributes to the Sentencing Reform Act's goal of creating a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive ...