Amendment 750 to the crack cocaine guidelines did not apply to a defendant whose original guidelines sentence was the statutory minimum sentence

In U.S. v. Glover the defendant moved to reduce his sentence under 18 U.S.C. §3582(c)(2) based on a retroactive amendment to the sentencing guidelines that lowered base offense levels for certain crack cocaine crimes. Glover pled guilty to 50 grams or more of crack cocaine violation 18 U.S.C. §841, but his relevant conduct involved two kilograms of crack cocaine. With his criminal history category of II, his guideline range would normally have been 188 to 235 months, except that he faced a mandatory life sentence under the sentencing enhancement provision of 21 U.S.C. §841(b)(1)(A) because he had at least two prior convictions for felony drug offenses. For this reason the statutory mandatory life sentence became his guideline sentence. The PSI recommended life and the sentencing judge adopted this recommendation. However, the government filed a §5K1.1 motion based on his substantial assistance to the government and the district court departed downward from the life sentence reducing his sentence to 208 months.

Amendment 750 lowered the crack cocaine penalties. The Sentencing Commission also made the amendment retroactive. In Glover’s case, the two kilogram quantity dropped from level 38 to 34. This would have given Glover an offense level 31 and a range of 121 to 151 for his criminal history category of II. Like many federal criminal lawyers in Miami that have applied for sentence reductions under this amendment, so did Glover. Unfortunately for Glover, the 11th Circuit held that §3582 does not allow for a reduction in his case. While the amendment normally applies where a sentencing range has been subsequently lowered by the Commission, the original guidelines were dictated by the statutory minimum. The amendment only applies if the amended guideline range is not affected by the operation of another other statute or guidelines. Here, Glover’s original guideline sentence was the statutory minimum of life, according to section 841(b)(1)(A). The statutory minimum was not affected by the Amendment.

The 11th Circuit held that the statute does not permit the defendant to receive a lower sentence than any sentence he would have receive if the amendment had been in effect at the time of his sentencing. The goal is to treat a defendant sentenced before the amendment the same as those sentenced after the amendment. Therefore, because the original sentence was based on a mandatory minimum sentence, the court lacks jurisdiction to consider a 3582(c)(2) motion even when an amendment would lower an otherwise applicable guidelines sentence.

Glover argued that Amendment 759 to the guidelines gave the sentencing court authority to lower his sentence because he gave substantial assistance to the government. The 11th Circuit found Amendment 759 not applicable. It did nothing more than limit a district court’s authority to reduce a defendant’s sentence below an amended guidelines range. It does not permit a court to reduce a defendant’s sentence based on a guidelines amendment that does not reduce his guidelines range. The court can only reduce a defendant’s sentence under 3582(c)(2) based on a retroactive amendment to the crack cocaine base offense levels if and only if that retroactive amendment actually lowers the defendant’s guidelines range.