No second bite at the apple for crack cocaine defendant originally sentenced with career offender status

In U.S v. Tellis, the Defendant pleaded guilty to selling crack cocaine in October of 2001. The presentence investigation report designated him as a career offender giving him an offense level of 37 under the sentencing guidelines, but because of the amount quantity of crack cocaine his base offense level became 38 under the drug quantity table of the federal sentencing guidelines manual. The drug offense quantity level of 38 was higher than the career offender level so his career offender status did not impact his offense level. For that reason, his sentence was based on the drug quantity and not his status as a career offender. The federal judge in Florida reduced his offense level to 32 after giving reductions for acceptance of responsibility and substantial assistance and then sentenced him to 210 months. The sentencing was not transcribed because the court reporter’s notes were destroyed, but there was no dispute as to these reductions.

In 2007 the United States Sentencing Commission amended the guideline range providing for a two-level reduction in the based offense level for crack cocaine offenses. Known as amendment 706, it applied retroactively. As a result the defendant’s offense level was reduced from a level 38 to a level 36 for his offense. The defendant moved for a sentence reduction under the new calculation. This time however the starting point was offense level 37 and not at a level 36 because of his career offender status, giving him an offense level 31 after acceptance and substantial assistance reductions.

In November 2011 the sentencing commission again amended the guidelines for crack cocaine. This time the defendant’s based offense level fell to a level 34 instead of the original level 38. The defendant again moved to reduce his sentence, but this time probation office found he was not eligible for a sentence reduction because of his status as a career offender. The defendant argued in this appeal that he should be eligible for the reduction because the record was not clear that he was considered a career offender and the initial sentence. The court of appeals rejected his position because it found that the record was clear he did have a career offender status. And also found that when he received the reduction in 2008 the defendant had stipulated to a sentence modification that was calculated based of his career offender status.

He also argued that the career offender status should not apply because his original sentence was based the drug quantity and not career offender range. By relying on the career offender provision at this point, it would constitute a resentencing as opposed to a sentencing modification. The court of appeals rejected this argument finding that at his first sentencing reduction the court made a determination that his original sentence was as a career offender and only modified his sentence based on his career offender status. It found there was no alteration in the guideline range that applied at his original sentence. The court affirmed several prior unpublished cases in which it held that a district court lacked discretion to modify the sentence under amendment 750 after the a defendant with career offender status had previously received a sentence reduction under the earlier amendment.