United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
February 2009, defendant Shaune Frazier entered a plea of
guilty to conspiracy to distribute or possess with intent to
distribute more than 5 kilograms of cocaine and to distribute
or possess with intent to distribute more than 50 grams of
cocaine base (“crack”). The court accepted the
parties' Rule 11(c)(1)(C) plea agreement and, in November
2009, sentenced Mr. Frazier to 235 months of imprisonment
followed by five years of supervised release. This matter is
now before the court on Mr. Frazier's motion for sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) (doc. 442).
In his motion, which is based on Hughes v. United
States, 138 S.Ct. 1765 (2018), Mr. Frazier contends that
he is now eligible for a sentence reduction under Amendment
782, because the Supreme Court has found that a sentence
imposed pursuant to a Rule 11(c)(1)(C) plea agreement is a
guideline sentence for the purpose of 18 U.S.C. §
3582(c)(2). As will be explained, the motion is dismissed.
courts, in general, lack jurisdiction to reduce a term of
imprisonment once it has been imposed. Freeman v. United
States, 131 S.Ct. 2685, 2690 (2011). “A district
court does not have inherent authority to modify a previously
imposed sentence; it may do so only pursuant to statutory
authorization.” United States v. Smartt, 129
F.3d 539, 540 (10th Cir. 1997). Under limited circumstances,
modification of a sentence is possible under 18 U.S.C. §
3582(c). That provision states that “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” may be eligible for a reduction,
“if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2).
Frazier is not entitled to a sentence reduction pursuant to
Amendment 782 because this amendment “does not have the
effect of lowering the defendant's applicable guideline
range” as required in U.S.S.G. § 1B1.10(a)(2).
According to U.S.S.G § 1B1.10(b)(1), the district court
“shall determine the amended guideline range that would
have been applicable to the defendant if the amendment(s) to
the guidelines . . . had been in effect at the time the
defendant was sentenced.” See United States v.
Boyd, 721 F.3d 1259, 1262 (10th Cir. 2013). Mr.
Frazier's Presentence Investigation Report (PSR)
calculated a base offense level of 38 under § 2D1.1
because the offense involved distribution of at least 4.5
kilograms of cocaine base. The base offense level of 38,
along with a 3-level reduction for acceptance of
responsibility, yielded an adjusted offense level of 35. But
the PSR then recommended an enhancement to Mr. Frazier's
sentence based on the career offender guideline, U.S.S.G.
§ 4B1.1. While that guideline did not increase Mr.
Frazier's base offense level (because the total offense
level under § 4B1.1 was 34, which was lower than the
adjusted offense level of 35), the guideline was applied to
increase Mr. Frazier's criminal history score from a
Category IV to a Category VI. The PSR, then, calculated a
guideline range of 292 months to 365 months based on the
total offense level of 35 and a criminal history category of
Frazier is not eligible for relief under Amendment 782.
First, the Amendment does not change the applicable guideline
range. As the court has previously noted in this case, the
factual portion of the PSR specified that Mr. Frazier
participated in a drug trafficking conspiracy between 2000
and 2006, and that by 2003 the conspiracy was responsible for
distributing at least 1 kilogram of cocaine base each month.
Mr. Frazier did not object to the PSR. As such, he is easily
accountable for the threshold quantity of cocaine base that
applies to base offense level 38 (25.2 kg of cocaine base)
under the amended guidelines. Mr. Frazier's resulting
guideline range, then, remains unchanged and no reduction is
authorized. United States v. Sharkey, 543 F.3d 1236,
1239 (10th Cir. 2008) (When a defendant's offense level
would be the same after applying the amendment, the amendment
does not affect the defendant's Guidelines range, and the
defendant is ineligible for a sentence reduction.).
the court determined that Mr. Frazier was accountable for
drug quantities that correspond to a lower base offense
level, Mr. Frazier would still not eligible for a reduction.
Under that scenario, Mr. Frazier's adjusted offense level
would be lower than the career-offender base offense level,
triggering a career-offender total offense level of 34.
See U.S.S.G. § 4B1.1(b). Coupled with the
career-offender mandatory criminal history category of VI,
Mr. Frazier's amended guideline range would be 262 to 327
months in prison. Mr. Frazier's current sentence of 235
months is lower than the low end of the amended range and,
accordingly, he is not entitled to a reduction. United
States v. Kurtz, 819 F.3d 1230, 1235 (10th Cir. 2016)
(district court lacks authorization to reduce a sentence when
the original sentence is already less than the “lower
bound” of the amended guideline range).
foregoing reasons, Amendment 782 does not provide any relief
to Mr. Frazier and no reduction is authorized by the statute.
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Frazier's motion for sentence reduction (doc. 442) is