Wednesday, October 19th, 2016

Sooner or Later, the Career Offender Guideline Will Get You

In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.

Mr. Lewis was originally sentenced in 2004. Under the drug table in § 2D1.1, his total offense level (based on distributing 1.5 KG or more of cocaine base) was 37, and at Criminal History Category VI, the range was 360 months to life. He also qualified as a Career Offender under § 4B1.1, but that determination resulted in a total offense level of 34, which yielded a range of 262 to 327 months at Category VI. Because § 4B1.1(b) states that the applicable offense level is the greater of the Career Offender level and the non-CO level, the applicable level was 37 (as determined by the quantity of drugs at issue), and thus the range 360 to life.

At sentencing, the Government refused to make a substantial assistance motion under § 5K1.1, explaining that while Mr. Lewis had provided some assistance, he “did not live up to his cooperation agreement” as a whole. The district court did not disagree but nonetheless sentenced Mr. Lewis to a non-Guidelines sentence of 192 months, “based on Defendant’s ‘substantial cooperation and assistance to the Government,’ his age, and ‘all the other factors set forth in [] § 3553(a).’” Order at 3.

First § 3582(c)(2) Motion

Mr. Lewis filed a § 3582(c)(2) motion in 2011, following the passage of the Fair Sentencing Act of 2010, which in relevant part amended the drug table in § 2D1.1 and lowered the offense level applicable to Mr. Lewis by two. Under the amendment, which the Commission made retroactive, his total offense level based on drug quantity became 33, leading to a sentencing range of 235 to 293 months. (Of course, this amendment did not alter the Career Offender range, which remained at 360 months to life. This fact becomes relevant to the second § 3582(c)(2) motion, discussed below).

Because even the bottom of this range exceeds the sentence Mr. Lewis actually received, he was not eligible for a reduction under § 1B1.10(b)(2), which states that “a district court may not reduce a defendant’s term of imprisonment to ‘less than the minimum of the amended guideline range’ unless the sentence was originally lower than the then-applicable Guidelines range ‘pursuant to a government motion to reflect the defendant’s substantial assistance to authorities.’” Order at 4.

Mr. Lewis argued that he qualified for a reduction under that exception, claiming that even though the Government did not file the requisite motion, “he still rendered substantial assistance that led to his below-Guidelines sentence.” Id. The Court disagreed, explaining that the Guideline “is unambiguous [] in requiring a government motion” to trigger the exception set forth in § 1B1.10(b)(2). Id.

Second § 3582(c)(2) Motion

Mr. Lewis filed a second § 3582(c)(2) motion in 2015, after the Sentencing Commission enacted another retroactively applicable amendment further reducing the offense level for most quantities listed in the drug table of § 2D1.1. Under this amendment, Mr. Lewis’s total offense level based on drug quantity became 31, leading to a sentencing range of 188 to 235 months. Because the bottom of this range was lower than his 192-month sentence, Mr. Lewis moved for a sentence reduction down to 188 months.

The district court denied this motion because under § 4B1.1(b) of the Guidelines, the offense level generated by the Career Offender Guideline – 34 – is now greater than the offense level generated by the drug table – 31 – and therefore governed. Thus, the applicable range (at OL 34 and Category VI) is 262 to 327 months, which “once again render[s] his actual sentence below the applicable Guidelines range.” Order at 5. Mr. Lewis was therefore not eligible for a reduction.

The Circuit affirmed, agreeing with the district court that “because Defendant’s offense level under the Career Offender Table was higher than that under the drug table, the former governed, leading to an applicable Guidelines range that was higher than the sentence Defendant received, and rendering Defendant ineligible for a sentence reduction.” Order at 6.

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