US v. Benson, No. 92-20184-TU.

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Writing for the CourtTURNER
Citation917 F. Supp. 543
Decision Date22 November 1995
Docket NumberNo. 92-20184-TU.
PartiesUNITED STATES of America, Plaintiff, v. Michael Ray BENSON, Defendant.

917 F. Supp. 543

UNITED STATES of America, Plaintiff,
Michael Ray BENSON, Defendant.

No. 92-20184-TU.

United States District Court, W.D. Tennessee, Western Division.

November 22, 1995.

917 F. Supp. 544
917 F. Supp. 545
Michael Ray Benson, Memphis, TN, pro se

Linda N. Harris, Asst. U.S. Attorney, Memphis, TN, for U.S.


TURNER, District Judge.

Defendant Michael Ray Benson, an inmate at the Federal Correctional Institution at Memphis, has filed a motion under 18 U.S.C. § 3582(c)(2), seeking to reduce the sentence imposed for his federal narcotics conviction.

A federal grand jury indicted Benson and a co-defendant on June 9, 1992, for one count of possession of 101 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On August 11, 1992, a jury returned a guilty verdict. On October 30, 1992, the court conducted a sentencing hearing and, on December 28, 1992, the court entered a judgment of conviction, sentencing Benson to a total term of imprisonment of two hundred-ninety-five (295) months, to be followed by a six-year period of supervised release. Benson appealed the conviction and sentence to the Sixth Circuit Court of Appeals, which affirmed. United States v. Benson, No. 93-5493, 1994 WL 188504, 1994 U.S.App. LEXIS 11278 (6th Cir. May 12, 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994).

Defendant has now filed a motion arguing that a recent amendment to the United States Sentencing Guidelines (U.S.S.G.) career offender guideline should be retroactively applied to shorten his sentence.

The Sentence Reform Act places strict limits on a court's power to modify a federal sentence. Title 18 United States Code § 3582(c) states:

The court may not modify a term of imprisonment once it has been imposed except that —
(1) in any case —
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and
(2) in the case of a defendant who 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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The Director of the Bureau of Prisons has not moved for a reduction of the defendant's sentence under § 3582(c)(1)(A), and neither any other statute nor Rule 35 is applicable. Therefore plaintiff must establish entitlement to a reduction under § 3582(c)(2).

Defendant contends that Amendment 506 to the Guidelines lowers his sentencing range, and thus requires the court retroactively to reduce his sentence. See Appendix C to the United States Sentencing Commission Guidelines Manual, Amendment 506. That amendment is retroactive. See, Id., Amendment 504; U.S.S.G. § 1B1.10(c).

When the court sentenced Benson for possession of less than 500 grams of cocaine with

917 F. Supp. 546
intent to distribute, the court concluded that as Benson was over 18 and had two prior controlled substances offenses, he fit the definition of a career offender in U.S.S.G. § 4B1.1. To calculate the career offender offense level, the court began by determining the statutory maximum penalty for the offense of conviction. Title 21 United States Code § 841(b)(1)(C) prescribes a maximum sentence of twenty (20) years for possession of less than 500 grams of cocaine. However, since Benson had a prior felony drug conviction, the statute increased his maximum possible sentence to thirty (30) years

The court then applied this maximum sentence to § 4B1.1, which includes a table1 that prescribes an offense level based on that maximum sentence. A statutory maximum of 30 years results in an offense level of 34. The court found Benson's offense level to be 34 and calculated the actual sentence range by cross-referencing that offense level with Benson's criminal history category in the sentencing table. U.S.S.G. § 5A. As a career offender, Benson's criminal history category was VI. U.S.S.G. § 4B1.1. The court determined the resulting sentencing range to be 262 to 327 months, and imposed a sentence of 295 months.

At the time Benson was sentenced, application note 2 of the Commentary to § 4B1.1 construed the maximum statutory penalty as the penalty applicable to an offender after considering his prior convictions. Note 2, U.S.S.G. § 4B1.1 (1993). Every court of appeals that had considered the question had approved using the enhanced penalty as the offense statutory maximum in determining a career offender's offense level. The courts universally held that doing so carried out Congress's intent that drug offenders receive sentences at or near the statutory maximums. 28 U.S.C. § 994(h). See, e.g., United States v. Gardner, 18 F.3d 1200, 1202 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 212, 130 L.Ed.2d 141 (1994); United States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 217, 126 L.Ed.2d 173 (1993); United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Saunders, 973 F.2d 1354, 1365 (7th Cir.1992), cert. denied, 506 U.S. 1070, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Moralez, 964 F.2d 677, 682-83 (7th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C.Cir.1992); United States v. Amis, 926 F.2d 328, 330 (3d Cir.1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir.1989).

Despite this universal approval of the Guideline, the Sentencing Commission issued Amendment 506, which amended Note 2. The note originally read, in pertinent part:

"Offense Statutory Maximum" refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense.

Amendment 506 deleted this sentence and substituted in its place the following:

"Offense Statutory Maximum," for the purposes of this guideline, refers to the maximum term of imprisonment authorized for the offense of conviction that is a crime of violence or controlled substance offense, not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record (such sentencing enhancement provisions are contained, for example, in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), (b)(1)(C), and
917 F. Supp. 547
(b)(1)(D)). For example, where the statutory maximum term of imprisonment under 21 U.S.C. § 841(b)(1)(C) is increased from twenty years to thirty years because the defendant has one or more qualifying prior drug convictions, the "Offense Statutory Maximum" for the purposes of this guideline is twenty years and not thirty years.

If this amendment is applied to Benson's sentence, his statutory maximum penalty will be 20 years, reducing his offense level to 32 and his sentencing range to 210 to 262 months. Benson now moves the court to resentence him, applying the revised application note. The government has filed a response, opposing any modification of his sentence. The government contends that the Commission, in issuing the new commentary, has violated its statutory mandate.

Absent ex post facto restrictions, the sentencing guidelines applicable to a sentence are ordinarily the guidelines in existence at the time of sentencing. 18 U.S.C. § 3553(a)(4). United States v. Holmes, 975 F.2d 275, 278 (6th Cir.1992). Section 1B1.10 of the Sentencing Guidelines defines whether guideline amendments are to be given retroactive effect.2 As required by Amendment 504 to the Guidelines, Amendment 506 is mentioned in § 1B1.10(c). Thus a reduction under amended § 4B1.1 of an already imposed sentence is consistent with the sentencing commission's policy statement. Therefore, § 3582(c)(2) does authorize the court to apply that section retroactively to modify Benson's sentence. United States v. Dullen, 15 F.3d 68 (6th Cir.1994). The government contends, however, that the court must not apply the revised method of calculating a § 4B1.1 sentence because the Commission exceeded its statutory mandate in issuing the revised commentary.

The Sentencing Commission is an independent commission in the judicial branch authorized to promulgate and review and revise determinative-sentence guidelines. Mistretta v. United States, 488 U.S. 361, 368-69, 109 S.Ct. 647, 652-53, 102 L.Ed.2d 714 (1988) (citing 28 U.S.C. §§ 991(a), 994(o)).

The Sentencing Commission promulgates guidelines by virtue of an express congressional delegation of authority for rulemaking, see Mistretta v. United States, 488 U.S., at 371-379, 109 S.Ct., at 654-658, and through the informal rulemaking procedures in 5 U.S.C. § 553, see 28 U.S.C. § 994(x). Thus, the guidelines are the equivalent of legislative rules adopted by federal agencies.

Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993).

The enabling legislation, 28 U.S.C. §§ 991-98, contains a general command to "assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of the title 18, United States Code" and to...

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