United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on Defendant Kemar Smith's
motion for reduction of sentence pursuant to 18 U.S.C. §
3582(c)(2) (Doc. 91).
and two co-defendants were indicted for the offense of
conspiracy to possess with intent to distribute marijuana
(Count One) and possession with intent to distribute
marijuana (Count Two) on board a vessel subject to the
jurisdiction of the United States. He pleaded guilty to Count
One and was sentenced to the statutory minimum term of 60
months (docs. 25, 48, 72).
first moves pursuant to 18 U.S.C. § 3582(c)(2) for
retroactive application of the Sentencing Guidelines scheme
effectuated by Amendment 782 to the United States Sentencing
Guidelines. Under § 3582(c)(2), Smith may be eligible
for a sentence reduction if he was initially sentenced
“based on a sentencing range” that was
subsequently lowered by the United States Sentencing
Commission. Amendment 782 generally reduced by two levels the
base offense level assigned to certain controlled substance
quantities in the Drug Quantity Table, U.S.S.G. §
2D1.1(c), and as a result, lowered the Sentencing Guidelines
range for certain offenses involving controlled substances.
Amendment 782 which went into effect November 1, 2014.
See United States v. Madera-Sanchez, 613 Fed.Appx.
798 (11th Cir. 2015) (acknowledging that Amendment 782 became
effective on November 1, 2014); U.S.S.G. § 1B1.10(d).
Smith was sentenced June 30, 2017, which was after
November 1, 2014, the effective date of Amendment 782. The
2016 Sentencing Guidelines Manual was used to determine
Smith's offense level. U.S.S.G. § 1B1.11(a)
(“The court shall use the Guidelines Manual in effect
on the date that the defendant is sentenced.”). The
2016 Manual incorporated all prior guideline amendments
including Amendment 782 (Doc. 57, p. 5, ¶ 17,
Presentence Investigation Report: “The 2016 Guidelines
Manual, incorporating all guideline amendments, was used to
determine the defendant's offense level. U.S.S.G. §
1B1.1.”). Thus, Smith already received the benefit
of the two-level reduction brought about by Amendment 782.
See United States v. Gallegos, 2017 WL 68631, at *1
(S.D. Ga., 2017) (explaining that “Defendant was
sentenced after the effective date of Amendment 782 and
therefore, already had the benefit of the two-level
also moves the Court for relief pursuant to the decision in
Hughes v. United States, 138 S.Ct. 1765 (2018). In
Hughes, the Supreme Court held that a defendant who
had pleaded guilty pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure may seek a retroactive
sentence reduction under 18 U.S.C. § 3582(c)(2), if the
guidelines range had been a factor in determining the
sentence. Id. at 1776. However, Smith did not plead
guilty pursuant to Rule 11(c)(1)(C). “[I]n a Type-C
agreement the Government and the defendant may agree to a
specific sentence, that bargain is contingent on the district
court accepting the agreement and its stipulated
sentence.” Hughes, 138 S.Ct. at 1776.
Smith's plea agreement does not contain an agreement to a
specific sentence (doc. 48 p. 4-5). Thus, the Hughes
decision does not apply.
the Court calculated Smith's sentencing guidelines range
as 46 to 57 months (see footnote 1). However, his
sentence was based on the statutory mandatory minimum
sentence of 60 months. Therefore, he is not entitled to
relief pursuant to 18 U.S.C. § 3582(c)(2) because his
sentence was not based on a sentencing range that was
subsequently lowered by an amendment to the Sentencing
Guidelines. See 46 U.S.C. § 70503; 46 U.S.C.
§ 70506 (incorporating the statutory penalties found in
21 U.S.C. § 960); See Koons v. United States,
138 S.Ct. 1783, 1788-89 (2018) (The Petitioners'
“sentences were not ‘based on' the lowered
Guidelines ranges because the District Court did not consider
those ranges in imposing its ultimate sentences. On the
contrary, the court scrapped the ranges in favor of the
mandatory minimums, and never considered the ranges again; as
the court explained, the ranges dropped out of the case. . .
. And once out of the case, the ranges could not come close
to forming the ‘basis for the sentence that the
District Court imposed, '. . . and petitioners thus could
not receive § 3582(c)(2) sentence reductions.”)
for the reasons set forth herein, Smith's motion is
 According to the Presentence
Investigation Report, Smith's total offense level was 23
and his criminal history category was I, which resulted in a
sentencing guidelines range of 46 to 57 months. Because the
statutory mandatory minimum sentence of 60 months was greater
than the maximum guidelines range, his guideline term of
imprisonment was 60 months. U.S.S.G. § 5G1.1(b). (Doc.
57, p. 9, ¶ 55).
 In Koons, for each of the
petitioners “the top end of the Guidelines range fell
below the applicable mandatory minimum sentence, and so the
court concluded that the mandatory minimum superseded the
Guidelines range…. Thus, in all five cases, the court
discarded the advisory ranges in ...