United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Gilbert Lamont Sweat (“Sweat”), a federal
prisoner proceeding pro se, moves for a reduction of his
sentence under under the provisions of the First Step Act of
2018. [DE 166]. However, as explained more fully below, Sweat
is ineligible for a sentence reduction under the First Step
Act due to his status as a career offender. [DE 85-87]. As a
result, Sweat's motion for a reduction of sentence [DE
166] is DENIED.
October 10, 2007, Sweat pleaded guilty to conspiracy to
distribute five grams or more of cocaine base
(“crack” cocaine) in violation of 21 U.S.C.
841(b)(1)(B). [DE 64]. On January 14, 2008, Sweat was
sentenced to a total term of imprisonment of two hundred
fourteen (214) months, to be followed by an eight-year term
of supervised release. [DE 85]. Sweat's sentence was
based on his status as a career offender pursuant to U.S.S.G.
§ 4B1.1, not the guidelines ranges in U.S.S.G. §
2D1.1, which are based on drug quantity. [DE 85-7].
has now moved for a reduction of his sentence based on the
First Step Act, and this matter is ripe for review. [DE 166].
December 21, 2018, the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, was signed into law. Among other
reforms, Section 404 of the First Step Act retroactively
applies certain sentencing reform provisions of the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372
(“FSA”). Specifically, the First Step Act
retroactively applies the reduced statutory penalties for
cocaine base (“crack” cocaine) offenses in the
FSA to “covered offenses” committed before August
court that imposed a sentence for a covered offense may
impose a sentence as if the FSA were in effect at the time
the covered offense was committed. This reduction in sentence
may be made by the court on its own or on a motion of the
defendant, the Director of the Bureau of Prisons, or an
attorney for the United States.
Sweat does not make any express legal argument about why his
sentence of two hundred and fourteen (214) months should be
reduced, he does mention the retroactivity provision of the
First Step Act, impliedly arguing that it might apply to his
sentence. [DE 166]. Sweat makes no mention of the fact that
he was sentenced as a career offender.
18 U.S.C. § 3582(c)(2), a defendant is eligible for a
sentence reduction if: (1) the defendant has been sentenced
to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission;
and (2) such reduction is consistent with applicable policy
statements issued by the Sentencing Commission.”
United States v. Riley, 726 F.3d 756, 758 (6th Cir.
2013) (internal citations and quotation omitted). To satisfy
the second requirement, “a guidelines amendment must
have the effect of lowering the defendant's applicable
guideline range.” Id. (internal citations and
argument that he might be eligible for a sentence reduction
under the First Step Act notwithstanding his sentencing
status as a career offender, has been foreclosed by the Sixth
Circuit and is thus completely without merit. In
Riley, the Sixth Circuit addressed whether prisoners
sentenced as career offenders were eligible for a sentence
reduction under the Fair Sentencing Act and held that those
sentenced as career offenders under U.S.S.G. § 4B1.1
were not eligible because the reforms in the Fair Sentencing
Act only affected the guidelines ranges under U.S.S.G. §
2D1.1. Id. at 758-59.
holding, the Sixth Circuit explained that career offenders
were not eligible for a sentence reduction under Amendment
706, a retroactive amendment that lowered the base offense
levels for most crack offense levels in § 2D1.1, because
sentences for career offenders were not based on a sentencing
range that had been lowered by the commission. See
Id. (discussing United States v. Perdue, 572
F.3d 288 (6th Cir. 2009)).
Sixth Circuit reaffirmed its holding in Perdue in
the context of Amendment 750 under the Fair Sentencing Act
because “that amendment did not lower the career
offender sentencing guidelines range” where a sentence
was derived from a defendant's status as a career
offender, rather than based on the quantity of drugs.
Id. at 759 (citing and discussing United States
v. Tillman, 511 Fed.Appx. 519, 521 (6th Cir. 2013)).
court must preliminarily calculate a defendant's §
2D1.1 guideline range to determine the statutory maximum
offense level in §4B1.1, but this does not mean that the
sentence was “based on” the drug quantity
calculations in § 2D1.1. Ultimately, a preliminary
calculation of a defendant's § 2D1.1 guideline range