Appeal from the United States District Court for the Eastern District of Louisiana.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: William James Quinlan, Jr., Esq., Assistant, U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA; Kevin G. Boitmann, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana; Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA.
STEPHEN BANKS, also known as Red, Defendant - Appellant, Pro se, New Orleans, LA.
Before KING, DENNIS, and CLEMENT, Circuit Judges.
Defendant-Appellant Stephen Banks appeals the denial of his motion to modify his sentence under 18 U.S.C. § 3582(c)(2). At issue is whether a defendant originally sentenced under the drug quantity table in U.S.S.G. § 2D1.1, but resentenced in a section 3582 proceeding using the career offender provisions in U.S.S.G. § 4B1.1, can bring another section 3582 motion to reduce his sentence based on an amendment to the Sentencing Guidelines that further lowers the guidelines range for crack cocaine in the § 2D1.1 drug quantity table. For the reasons that follow, we hold that he cannot, and therefore we AFFIRM.
I. Factual and Procedural History
Defendant-Appellant Stephen Banks pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base (" crack cocaine" ) in 2005, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(A), and 846. In the factual basis to his plea agreement, Banks admitted the amount of drugs involved was more than 1.5 kilograms of crack cocaine. Pursuant to his plea agreement, the Government agreed not to pursue the statutory sentencing enhancement available under 21 U.S.C. § 851 for drug trafficking defendants with prior drug trafficking convictions.
Because of the amount of drugs involved, Banks had a base offense level of 38 under the drug quantity table in § 2D1.1 of the Sentencing Guidelines. See U.S.S.G. § 2D1.1 (2004). An offender with multiple prior convictions may, however, be sentenced under the provisions for " career offenders" in § 4B1.1. See U.S.S.G. § 4B1.1. The § 4B1.1 guidelines are only used if they result in a base offense level higher than that arrived at using the § 2D1.1 guidelines. See U.S.S.G. § 4B1.1(b). Because Banks's base offense level was 38 under § 2D1.1, and would have been only 37 under § 4B1.1, the district court applied § 2D1.1 in sentencing Banks.
After Banks pleaded guilty, the Government moved the court to decrease Banks's offense level by three points for acceptance of responsibility under § 3E1.1, because he pleaded guilty and provided the Government with timely notice of his intention to do so. See U.S.S.G. § 3E1.1. Additionally, the Government recommended that the court reduce Banks's sentence as he rendered substantial assistance to authorities. See U.S.S.G. § 5K1.1.
Starting with the § 2D1.1 base offense level of 38, the three point reduction for acceptance of responsibility led to an offense level of 35. Given his criminal history level of VI, the Guidelines range was 292 to 365 months in prison. See U.S.S.G. ch.5, pt. A (sentencing table). Granting the Government's request for a reduced sentence for substantial assistance, the district court sentenced Banks to 195 months in prison. See U.S.S.G. § 5K1.1.
In 2008, the Sentencing Guidelines were amended, reducing the base offense levels for crack cocaine in the § 2D1.1 drug quantity table. See U.S.S.G. Amendment 706; U.S.S.G. § 2D1.1 (2008). Banks moved, under 18 U.S.C. § 3582(c)(2), to reduce his sentence due to the amendment. The district court granted the motion, but, since the new base offense level under § 2D1.1 (36) was lower than ...