United States District Court, C.D. Illinois, Urbana Division
MICHAEL P. McCUSKEY, District Judge.
Defendant Mario Chalmers filed this Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (#96) on January 24, 2014. This court appointed the Federal Public Defender's Office to represent Defendant on this motion on February 12, 2014. Both Defendant and the government have fully briefed the motion. For the following reasons, Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (#96) is DENIED.
On October 22, 2009, Defendant, Mario Chalmers, pled guilty to conspiracy to distribute 50 or more grams of crack cocaine with intent to distribute in violation of 21 U.S.C. § 846. Defendant faced a statutory mandatory minimum sentence of 20 years imprisonment. On January 20, 2011, the court sentenced Defendant to 168 months in the Federal Bureau of Prisons (BOP) after reducing his sentence pursuant to 18 U.S.C. § 3553(e) and United States Sentencing Guideline §5K1.1. Defendant did not appeal and his conviction became final on February 3, 2011. Defendant filed a pro se Motion for Retroactive Application of the Sentencing Guidelines Pursuant to 18 U.S.C. § 3582(c) (#76) on October 27, 2011. On February 7, 2012, the court entered an Order (#79) denying the motion because Defendant had been sentenced pursuant to a statutory mandatory minimum and the Sentencing Guidelines. Defendant filed a Motion to Restore Time-Credit Computations (#92) on December 27, 2013, arguing that the court should grant him time earned "from the United States government for his testimony in a capitol murder case in which he was a witness" in December 2012. This court denied that motion in an Order (#95) on January 21, 2014, for lack of subject matter jurisdiction.
Defendant filed the instant Motion for the Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (#96) on January 24, 2014. In the motion, Defendant argues: (1) he is entitled to a sentence reduction under the Fair Sentencing Act (FSA) because he was arrested before, but sentenced after, the August 3, 2010 effective date of the FSA; (2) he was heavily influenced in his youth by the "darker-side of the hip-hop culture" and made bad decisions based on that influence; (3) that he was young and had only one prior conviction before the instant offense; and (4) that he has rehabilitated himself and participated in numerous prison programs since being incarcerated. The government filed its Response (#97) on January 30, 2014, arguing that, as with Defendant's previous sentence reduction motions, this court has no subject matter jurisdiction. This court entered an Order (#98) on February 12, 2014, appointing the Federal Defender's Office and directing the Federal Defender to file a brief stating its position on whether Defendant may be entitled to a sentence reduction under Dorsey v. United States, 132 S.Ct. 2321 (2012), and, if so, whether the proper vehicle for pursuing such a reduction is a motion under §§ 3582(c)(2) or (c)(1)(B), or § 2255. Defendant's Brief (#99) was filed on March 11, 2014. The government's Response (#100) was filed April 11, 2014.
Defendant argues that his sentence should be reduced under § 3582(c)(2). First, in support, Defendant cites to the Seventh Circuit's decision in United States v. Wren, 706 F.3d 861 (7th Cir. 2013), which involved the very rare situation where the Sentencing Guidelines range was higher than the statutory mandatory minimum, and, therefore, the court held that the Guidelines range was not affected by the statutory minimum and could be lowered when the Sentencing Guidelines were retroactively lowered. Wren, 706 F.3d at 864. In this case, as this court has noted in prior orders, Defendant's sentence was not based on the offense level set forth in §2D1.1 of the Sentencing Guidelines, which was lowered by Amendment 750 to the Guidelines, but rather the sentence was based on the statutory mandatory minimum. Therefore, Wren does not apply to Defendant's case.
Defendant next argues that, because he was ultimately sentenced below the statutory mandatory minimum due to a downward departure for substantial assistance pursuant 18 U.S.C. § 3553(e) and United States Sentencing Guideline §5K1.1, he should be eligible for a sentence reduction under § 3582(c)(2). Defendant acknowledges that such an argument was rejected by the Seventh Circuit in United States v. Poole, 550 F.3d 676 (7th Cir. 2008). However, Defendant argues that Poole has been superseded by subsequent amendments to the Sentencing Guidelines and in support cites to cases from the Third Circuit ( United States v. Savini, 733 F.3d 56 (3rd Cir. 2013)) and D.C. Circuit ( In re Sealed Case, 722 F.3d 361 (D.C. Cir. 2013)) Courts of Appeal. Those courts, in those cases, held that a defendant subject to a statutory mandatory minimum but ultimately sentenced below that minimum as a result of § 3553 motion by the government for substantial assistance, was eligible to move for a reduction in sentence pursuant to § 3582(c)(2) where the sentencing range had later been lowered by the Sentencing Commission. Savini, 733 F.3d at 65-66; In re Sealed Case, 722 F.3d at 368. These cases would reject the rationale and holding of Poole in the instant case.
The Seventh Circuit, however, recently reaffirmed Poole and rejected the argument being advanced by Defendant. In United States v. Johnson, ___ F.3d ___, 2014 WL 1061098 (7th Cir. Mar. 19, 2014), the defendant was charged in 2007 and in 2011 plead guilty to possession of crack cocaine with intent to distribute and possession of a gun in furtherance of drug crime. The defendant was sentenced to 60 months in the BOP under § 3553(e), a departure from the 120-month mandatory minimum for repeat drug offenses because he cooperated with the government. The defendant argued that he was entitled to a reduction in his sentence under § 3582(c)(2) due to amendments to the crack cocaine Guidelines. The Seventh Circuit rejected this contention, holding:
"We cannot reduce a defendant's sentence under § 3582(c)(2) if the original sentence was based on a statutory minimum. Poole, 550 F.3d at 679-80. Because Johnson had a prior felony drug conviction, he was subject to a 120-month mandatory minimum. 21 U.S.C. § 841(b)(1)(B). The district court sentenced Johnson below this minimum at the government's request, pursuant to 18 U.S.C. § 3553(e). Although the district court departed from the mandatory minimum, Johnson's sentence was still based on the mandatory minimum, not the subsequently-amended Sentencing Guideline. Poole, 550 F.3d at 678.
Johnson tries to argue that Poole was superseded by the 2011 amendments to the Sentencing Guidelines, which defined applicable guideline range' for the first time. He suggests that the definition includes only the criminal history category and offense level calculations, without consideration of any statutory mandatory minimums. But the commentary Johnson points to defines guideline range' as the range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a). ' U.S.S.G. § 1B1.1 cmt. n. 1(A) (emphasis added) [emphasis added by Seventh Circuit in Johnson ]. Subsection 8 of § 1B1.1(a) directs a sentencing judge to apply parts B through G of Chapter 5 of the guidelines. This includes § 5G1.1, which provides that where a minimum sentence is greater than the guidelines sentence, the minimum sentence becomes the guidelines sentence. The statutory minimum is part of the applicable guideline range.' Johnson's argument is a non-starter." Johnson, ___ F.3d ___, 2014 WL 1061098.
Based on the Seventh Circuit's opinion in Johnson affirming Poole, the court finds that Poole applies to bar Defendant's claim for a sentence reduction under § 3582(c)(2). The court lacks jurisdiction to modify Defendant's sentence ...