United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motions for
reconsideration. (DE 290, DE 292). The issues raised are ripe
for ruling. For the reasons that follow, this court
denies petitioner's motions.
December 1, 2004, petitioner was charged in two counts of a
three-count indictment with the following: conspiracy to
distribute and possess with intent to distribute more than 50
grams of cocaine base (crack) and more than 500 grams of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
846 (Count One); and distribution of a quantity of cocaine
and aiding and abetting, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2 (Count Three). At his
arraignment, held on February 22, 2005, petitioner pleaded
not guilty. Following a three-day jury trial, petitioner was
14, 2005, the court sentenced petitioner to 400 months'
imprisonment on Count One and 360 months' imprisonment on
Count Three, to run concurrently. Petitioner appealed his
judgment, and the Court of Appeals for the Fourth Circuit
affirmed his conviction and sentence. See United States
v. Burston, 195 Fed.Appx. 150 (4th Cir. 2006) (appeal
consolidated with codefendant). Petitioner filed a petition
for certiorari with the Supreme Court, but it was denied.
See Abdullah v. United States, 549 U.S. 1145 (2007).
January 9, 2008, petitioner filed his first motion to vacate
pursuant to 28 U.S.C. § 2255. On March 11, 2009, the
court addressed petitioner's three claims of ineffective
assistance of counsel and denied petitioner's motion. On
June 20, 2016, the Fourth Circuit granted authorization for
petitioner to file a second or successive § 2255 motion.
On that same day, through appointed counsel, petitioner filed
a § 2255 motion, arguing that in light of the Supreme
Court's decision in Johnson, 135 S.Ct. at 2551,
he was improperly sentenced as a career
21, 2016, the court stayed this matter pending the Supreme
Court's final decision in Beckles v. United
States, 15-8544. On April 7, 2017, the court lifted the
stay. Petitioner was directed to show cause within thirty
days why his § 2255 motion should not be dismissed in
light of Beckles v. United States, 137 S.Ct. 886
(2017). Petitioner failed to respond, and July 12, 2017, the
court denied petitioner's motion to vacate.
on March 15, 2017, petitioner filed a motion for reduction of
sentence under Amendment 794, which the court also denied on
July 12, 2017, holding “defendant is not entitled to a
sentence reduction pursuant to Amendment 782 because his
original sentencing guideline range was based on his status
as a career offender rather than drug quantity.” (DE
24, 2017, petitioner filed the first of two motions for
extension of time to file a motion for reconsideration, both
of which the court granted, allowing petitioner to file his
motion by October 20, 2017. On October 23, 2017 and on
February 5, 2018, petitioner filed the instant two motions
for reconsideration, the former requesting the court
reconsider its denial of petitioner's motion for
reduction of sentence and the latter requesting the court
reconsider its denial of petitioner's original §
2255 motion to vacate.
Motion to Reconsider Court's Denial of Motion for
Reduction of Sentence
court's authority to modify a sentence is extremely
narrow. There are only three circumstances in which
modification is allowed: (1) upon motion of the Director of
the Bureau of Prisons; (2) as permitted by statute or Federal
Rule of Criminal Procedure 35; and (3) where the relevant
sentencing guidelines have changed since sentence was
imposed. See 18 U.S.C. § 3582(c)(1)(A), (1)(B),
and (2). However, a reduction of a term of imprisonment is
not authorized (i.e. not consistent with applicable policy
statements) under § 3582(c)(2) if the amendment
“does not have the effect of lowering the
defendant's applicable guideline range.” U.S.S.G.
instant case, based on a total offense level of 38 and a
criminal history category of VI, petitioner's sentencing
guideline range is 360 months to life imprisonment.
(See PSR (DE 293 June 6, 2005) at ¶ 59).
Amendment 782 does not have the effect of lowering the
defendant's applicable guideline range. Although
Amendment 782 reduces the petitioner's base offense level
from 36 to 34, petitioner's total offense level is
thereby only reduced from 38 to 37 due to the application of
petitioner's career offender status. (See id. at
¶ 54 (“[D] efendant is a career offender within
the meaning of Section 4B1.1 of the guidelines. Section 4B1.1
prescribes an offense level of 37. However, as an offense
level of 38 has already been established, the offence level
is not affected by the career offender designation.”)).
Based on a total offense level of 37 and a criminal history
category of VI, petitioner's sentencing guideline range
remains 360 months to life imprisonment. See
U.S.S.G. Ch. 5, Pt. A (2005).
argues that he “should receive a 2 level reduction
since this court did not originally use U.S.S.G. § 4B1.1
to determine sentence.” (DE 290 at 2). The court did,
however, originally apply the career offender guideline to
determine that petitioner is a career offender, (see
PSR (DE 293 June 6, 2005) at ¶ 54 (“defendant is a
career offender within the meaning of Section 4B1.1”)),
even though that status as originally applied had no effect.
(Id.). Because the court applied the career offender
guideline previously, and determined that petitioner was a
career offender, the court is required to apply that
provision in determining whether petitioner is entitled to a
sentencing reduction. See U.S.S.G. §
1B1.10(b)(1) (emphasis added) (“the court shall