The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Thursday, 01 November, 2012 03:47:50 PM
Clerk, U.S. District Court, ILCD
This cause is before the Court on Defendant Mario Oliea's pro se Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (Motion for Reduced Sentence) (d/e 27) and his Motion to Hold § 3582(c)(2) Proceedings in Abeyance Pending the Outcome of the Supreme Court Decision Granting Certiorari Review for Descamps v. United States to Re-Consider United States v. Almendarez-Torres, 523 U.S. 224 (1998) (Abeyance Motion) (d/e 29).
Because Defendant was sentenced as a career offender, he is not eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2). Therefore, Defendant's Motion for Reduced Sentence (d/e 27) is DISMISSED for lack of subject-matter jurisdiction and his Abeyance Motion (d/e 29) is DENIED AS MOOT.
In June 2007, Defendant pleaded guilty to two counts of possession with intent to distribute five or more grams of a mixture and substance containing cocaine base ("crack") in violation of 21 U.S.C. §841(a)(1) and (b)(1)(B). In the Presentence Investigation Report (PSR), Defendant was held accountable for 845.20 grams of crack. The PSR also found that Defendant was a career offender. See PSR, p. 7, ¶ 26; U.S.S.G. § 4B1.1(a). After an adjustment for acceptance of responsibility, Defendant's total offense level, based on the career offender guideline, was 34. Had Defendant not been a career offender, his total offense level after an adjustment for acceptance of responsibility would have been 33. See U.S.S.G. §4B1.1(b) (with an exception not applicable here, providing that "if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply.") Based on an offense level of 34 and a criminal history category of VI, Defendant's sentencing guideline range was 262 to 327 months' imprisonment. PSR, p. 22, ¶ 88.
At the October 2007 sentencing hearing, the Court adopted the factual findings of the PSR as its own and sentenced Defendant to 262 months' imprisonment on each of Counts 1 and 2, to run concurrently. See Judgment (d/e 13); October 29, 2007 Minute Entry. Defendant did not appeal.
In 2008, Defendant requested a reduced sentence pursuant to the retroactive amendment (Amendment 706) to the crack cocaine guideline. See d/e 25. On March 17, 2009, the Court found Defendant was "not entitled to a reduction in sentence under the Amendment because his sentence was based on the fact that he was a career offender, and not on the crack guidelines." March 17, 2009 Text Order.
On October 31,2 011, Defendant filed a pro se Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense (d/e 27).
Pursuant to Administrative Order 11-MC-2042, this Court appointed the Federal Defender to represent Defendant on his Motion. On September 26, 2012, Jonathan E. Hawley, Chief Public Defender, moved to withdraw as counsel for Defendant (d/e 28). Hawley concluded Defendant was ineligible for a reduced sentence pursuant to the retroactive amendment to the crack cocaine guideline because Defendant was sentenced as a career offender.
On September 26, 2012, this Court granted Hawley leave to withdraw and granted Defendant until October 29, 2012 to file any supplement to his motion.
On October 29, 2012, Defendant filed his Abeyance Motion. In his Abeyance Motion, Defendant asks that the Court hold off ruling on Defendant's Motion because the Supreme Court has held that United States v. Almendarez-Torres, 523 U.S. 224, 226-27 (1998) was wrongly decided and will be reconsidered in United States v. Descamps, in which certiorari was granted. But see Almendarez-Torres, 523 U.S. at 226-27 (finding that 8 U.S.C. § 1326(b)(2) only authorized an enhanced penalty when an offender has an earlier conviction and did not constitute a separate crime; therefore, an indictment need not mention the fact of the earlier conviction); United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012), cert. granted in part, 2012 WL 1031489 (August 31, 2012) (granting certiorari only on the issue of whether a state conviction for ...