May 31, 2013
UNITED STATES OF AMERICA, Plaintiff,
DEANDRE LOWE, Defendant.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
On November 14, 2011, Deandre Lowe, pro se, filed a motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence based on retroactive guideline Amendment 750, effective November 1, 2011, concerning cocaine base ("Crack") (Doc. 71). The Court appointed counsel to represent Lowe on the issue of a sentencing reduction in light of the amendment to the United States Sentencing Guidelines, 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) (Doc. 77). See Anders v. California, 386 U.S. 738, 744 (1967). Lowe did not respond to the motion to withdraw, even though he was given an opportunity to do so. See Docs. 78, 80.
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. 994(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.), cert. denied sub nom McKnight v. United States, 129 S.Ct. 1924 (2009).
Lowe cannot satisfy the first criterion of the statute because 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. 994(o)." 18 U.S.C. § 3582(c)(2). The Sentencing Commission issued U.S.S.G. Amendment 750, effective November 1, 2011, intending to alter the disparity in sentences involving crack cocaine and sentences involving powder cocaine. Lowe, however, was sentenced on his base level set forth in U.S.S.G. § 4B1.1 ("Armed Career Offender"), not his base offense level set forth in U.S.S.G. § 2D1.1. Thus, his 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. See United States v. Williams, 694 F.3d 917, 918 (7th Cir. 2012) (Career offenders are not eligible for crack disparity reductions.). The Court lacks subject matter jurisdiction to consider Lowe's reduction request. See Forman, 553 F.3d at 588; Lawrence, 535 F.3d at 637-38.
Accordingly, the Court GRANTS counsel's motion to withdraw (Doc. 77) and DISMISSES for lack of jurisdiction the motion for sentence reduction (Doc. 71).
IT IS SO ORDERED.