The opinion of the court was delivered by: Jr. Joseph A. Greenaway, Jr., U.S.C.J. (Sitting by designation on the District Court)
GREENAWAY, JR., U.S.C.J.*fn1
Pro se defendant John Todd ("Defendant"), moves this Court, pursuant to 18 U.S.C. § 3582(c)(2), to modify his sentence. Defendant argues that this Court should reduce his sentence for two reasons: (1) "to reflect the correct total amount" of cocaine seized from the Defendant and (2) "to reflect accurately [a]ll [u]nnoted (5K1.1) substantial assistance provided to the U.S. Government." (Defendant's Motion Requesting Modification 1.) 18 U.S.C. § 3582(c)(2) provides that:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added).
On May 25, 2005, Defendant pleaded guilty to intent to distribute, and possession with intent to distribute, 2 kilograms of cocaine, in violation of 21 U.S.C. § 841. Defendant claims that the correct amount of cocaine involved is 1.15 kilograms, as indicated in his pre-sentencing report. Defendant seeks a modification based on his decision to plead guilty to 2 kilograms, instead of pleading guilty to 1.15 kilograms.
The Third Circuit has recently observed that "[t]o be entitled to a reduction of sentence, a defendant's sentencing range must have been lowered by recalculation based on the amended base offense level." Id. at 154; see U.S.S.G. § 1B1.10(a)(2)(B).
The Sentencing Commission has not lowered a sentencing range to account for defendants who have pleaded guilty to a higher quantity of drugs than indicated in the pre-sentencing report. Here, there is no amended base offense level to speak of. Defendant challenges the factual basis of his guilty plea. Section 3582(c)(2), therefore, does not apply.*fn2
Defendant's second basis for requesting modification of his sentence fails for similar reasons. Defendant contends that certain aspects of Defendant's assistance to the Government was not incorporated in the Government's 5K1.1 motion. The Sentencing Commission also has not lowered any sentencing range based on supposed "unnoted" substantial assistance.
Moreover, even if section 3582(c)(2) applied, Defendant makes no showing that he preserved his objections on the record. During Defendant's sentencing hearing, this Court provided Defendant's counsel and Defendant the opportunity to be heard on the issue of substantial assistance. This Court granted the Government's 5K1.1 motion, crediting Defendant for his pre-sentencing assistance.*fn3
This Court having reviewed the submissions of the parties, and good cause appearing, IT IS on this 24th day of March, 2010, ORDERED that Defendant's motion to reduce his sentence (Docket Entry No. 54) is DENIED;*fn4 and it is further
ORDERED that a copy of this Order be served on all parties within seven (7) days of the ...