A substantial portion of the record in this case is currently under seal. Consequently, the 1

court’s recitation of the facts must be particularly brief and undetailed.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.

TARELL STEWART,

Defendant.

:

:

:

:

:

:

:

CRIMINAL 

NOs. 02-736

 and

 03-442

Memorandum

YOHN, J. June 3, 2009

Defendant Tarell Stewart has filed a motion for modification of an imposed term of

imprisonment pursuant to 18 U.S.C. § 3582(c)(2). Stewart seeks reduction of his sentence

following Amendment 706 to the Sentencing Guidelines, which reduced the offense levels of

crack-based offenses and was made retroactively applicable by Amendment 713, effective March

3, 2008. U.S.S.G. Supp. to App’x C, Amend. 706, 711, 713. The court concludes that Stewart is

eligible for a sentencing reduction pursuant to § 3582(c)(2) and will grant his motion.

I. Factual Background1

Defendant pleaded guilty to two counts of possession with intent to distribute crack

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); one count of possession of a

firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and one

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). On

August 29, 2005, the court sentenced defendant to 144 months’ imprisonment, 8 years’

supervised release, and a $1,000 fine. (Sentencing Tr. 31:6-33:19, Aug. 29, 2005 (Doc. No. 53).) 

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 1 of 7
 The Third Circuit has held that a sentencing court granting a downward departure from 2

the career offender guidelines under U.S.S.G. § 4A1.3 (a Shoupe departure) may depart

downward as to both base offense level and criminal history category. Shoupe, 35 F.3d at 839.

2

Defendant’s term of imprisonment consisted of 60 months on the § 924(c) charge, to be served

consecutively to an aggregate sentence of 84 months on all other charges. Id. 31:6-13. 

Defendant’s past conduct resulted in a criminal history category of VI. In aggregate, defendant’s

offenses involved approximately 21.5 grams of crack cocaine, which corresponded to a base

offense level of 28 under U.S.S.G. § 2D1.1. After adjusting for acceptance of responsibility,

defendant’s total offense level was 25. However, defendant’s past conduct triggered the career

offender guideline codified in U.S.S.G. § 4B1.1, under which defendant’s total offense level

would have been 34.

After explicitly considering many factors, the court departed downward from the career

offender guideline. In doing so, the court referred to career offender status as “a little heavy”

under the facts of defendant’s case. (Sentencing Tr. 11:22-24, 28:7-14.) A predicate robbery

offense involved just $10, no weapon, and a minimal assault. The court also explicitly

referenced the underlying crack guidelines as a factor in its sentencing determination when

explaining the extent of the downward departure. (Id. 28:21-29:1.) As these comments

demonstrate, both on the record and in its pre-sentence analysis of the relevant sentencing

factors, the court granted a substantial portion of the downward departure pursuant to United

States v. Shoupe, 35 F.3d 835 (3d Cir. 1994).2

II. Discussion

A. Statutory Basis for Sentence Modification

In general, a court “may not modify a term of imprisonment once it has been imposed.” 

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 2 of 7
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18 U.S.C. § 3582(c) (2006). However, Congress has empowered the courts to modify alreadyimposed sentences in limited circumstances, including:

in 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.

Id. § 3582(c)(2). The Sentencing Commission has expressed its policy statement regarding

sentence reduction pursuant to § 3582(c)(2) in U.S.S.G. § 1B1.10. Subsection (c) of § 1B1.10

sets out the “covered amendments” to the Guidelines that, pursuant to § 3582(c)(2), may be

retroactively applied to reduce already-imposed sentences. Thus, an amendment must be listed

in § 1B1.10(c) for the retroactive application of that amendment to be consistent with the

Sentencing Commission’s policy statement.

Furthermore, § 1B1.10(a)(3) states that § 3582(c)(2) proceedings “do not constitute a full

resentencing of the defendant,” and § 1B1.10(b)(2)(A) states “the court shall not reduce the

defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term

that is less than the minimum of the amended guideline range.” This broad prohibition in §

1B1.10(b)(2)(A), however, is modified in cases like Stewart’s because § 1B1.10(b)(2)(B)

provides: 

If the original term of imprisonment imposed was less than the term of imprisonment

provided by the guideline range applicable to the defendant at the time of sentencing,

a reduction comparably less than the amended guideline range determined under

subdivision (1) of this subsection may be appropriate. However, if the original term

of imprisonment constituted a non-guideline sentence determined pursuant to 18

U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction

generally would not be appropriate.

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 3 of 7
 The second sentence of § 1B1.10(b)(2)(B) is not applicable because Stewart’s original

3

sentence was based on departures authorized by the guidelines and was not a non-guideline

sentence as a result of a variance.

4

Thus, for defendants such as Stewart who received downward departures from the applicable

guideline ranges at their original sentencings, § 1B1.10(b)(2)(B) authorizes courts to grant

comparable departures from the amended guideline ranges in § 3582(c)(2) proceedings. See §

1B1.10 cmt. n.3 (2008).3

B. Eligibility for Sentencing Reduction under Amendment 706

Under the terms of § 3582(c)(2), a district court may modify a sentence “in 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.” (emphasis added). The “based

on” language is critical: motions for reduction of sentence pursuant to Amendment 706 often turn

on whether the defendant was actually sentenced “based on” U.S.S.G. § 2D1.1. Defendants who

committed crack-based offenses but who were sentenced as career offenders solely under

U.S.S.G. § 4B1.1 and not under the crack guidelines are not eligible for sentencing reductions

following Amendment 706 because their sentences were not “based on” a guideline that

Amendment 706 amended. United States v. Mateo, 560 F.3d 152, 154-55 (3d Cir. 2009)

(defendant who had been sentenced for a crack offense under the career offender guideline, with

a downward adjustment for acceptance of responsibility, was not eligible for sentencing

reduction following Amendment 706); see also United States v. Squire, No. 97-461, 2008 WL

4694915, at *3-*4 (E.D. Pa. Oct. 23, 2008) (holding that the defendant was not entitled to a

sentencing reduction following Amendment 706 because his “sentence was based solely on the

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 4 of 7
 In United States v. Poindexter, for example, the original sentencing judge concluded that 4

the guideline range applicable to a career offender overrepresented the seriousness of the

defendant’s criminal history. The judge therefore looked to U.S.S.G. § 2D1.1 for guidance as to

the appropriate sentence. 550 F. Supp. 2d 578, 580-81 (E.D. Pa. 2008). At the Poindexter

defendant’s original sentencing, the sentencing judge therefore “reduced [the defendant’s]

offense level to that which he would have faced absent the career offender designation.” Id. at

581. The Poindexter court held that the defendant’s sentence was, therefore, “based on” § 2D1.1

and so could be reduced pursuant to § 3582(c)(2). Id. at 582; see also United States v. Nigatu,

No. 00-18, 2008 WL 926561 (D. Minn. April 07, 2008) (granting § 3582(c)(2) motion for

defendant where, at original sentencing, the court found that the career offender guideline

overstated defendant’s criminal history and instead sentenced defendant under the crack

guidelines).

The Poindexter court confirmed that a sentence is not “based on” U.S.S.G. § 2D1.1 if that

guideline range did not “play a role in [the judge’s] guideline calculation,” Poindexter, 550 F.

Supp. 2d at 581 (quoting United States v. Gutierrez, No. 02-27, 2008 WL 927564, at *2 (D.

Conn. April 4, 2008)). Conversely, if § 2D1.1 did play a role in sentencing, a sentence would be

“based on” § 2D1.1. See id. at 580-82; see also United States v. Stratton, No. 99-326, 2009 WL

506365, at *5-*6 (E.D. Pa. Feb. 26, 2009).

5

career offender guideline range, with a downward departure only because of his extraordinary

physical impairment”); United States v. Perdue, No. 1:99-cr-00334, 2008 WL 4404278, at *3

(N.D. Ohio Sept. 23, 2008) (acknowledging that “[a] number of courts have reached the

conclusion that Amendment 706 does not apply where the defendant’s sentence is actually

determined by his status as a career offender”).

Nevertheless, the potential applicability of career offender status to a defendant does not

necessarily foreclose the defendant’s eligibility for a § 3582(c)(2) reduction under Amendment

706 because such a defendant may actually have been sentenced, in whole or in part, based on the

crack guidelines. The court must, therefore, determine whether Stewart’s sentence was “based

4

on” § 2D1.1, given the court’s consideration of § 2D1.1 at sentencing. For reasons discussed

below, the court concludes that Stewart’s sentence was “based on” § 2D1.1 within the meaning

of § 3582(c)(2), despite his eligibility for career offender status. Thus, Stewart is eligible for a

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 5 of 7
 The offense level was then further reduced under the guidelines for other reasons on 5

motion by the government.

6

sentence reduction pursuant to § 3582(c)(2) and Amendment 706.

C. Application of § 3582(c)(2) to the Instant Case

Pursuant to Shoupe, the court departed from the career offender guideline as to Stewart’s

offense level because the career offender guideline overrepresented the seriousness of Stewart’s

offenses. Stewart’s criminal history category remained at VI, which was the appropriate category

under both the career offender guideline and the underlying crack guidelines. In analyzing an

appropriate offense level under Shoupe, the court departed to an offense level of 25, the exact

guideline level called for by the crack guideline (after adjusting for acceptance of responsibility).5

Given the court’s explicit reference to the underlying crack guidelines, Stewart’s sentence was

certainly based, in part, on § 2D1.1, and the crack guidelines played a role in the sentencing

calculation by the court.

As the court has previously concluded, under the plain meaning of § 3582(c)(2), a

sentence may have multiple bases. United States v. Stratton, No. 99-326, 2009 WL 506365, at

*6 (E.D. Pa. Feb. 26, 2009). Here, § 2D1.1, which the Sentencing Commission has retroactively

amended, was one basis for Stewart’s sentence. Stewart’s sentence was, therefore, “based on a

sentencing range that has subsequently been lowered by the Sentencing Commission,” and

Stewart is eligible for a reduction of sentence.

As explained above, the court then departed downward from the otherwise applicable §

2D1.1 guideline range pursuant to other guideline provisions. Stewart’s original sentence did not

constitute a variance from the guidelines as a non-guideline sentence under United States v.

Case 2:03-cr-00442-MAK Document 26 Filed 06/04/09 Page 6 of 7
Booker was decided on January 12, 2005. The original sentencing of defendant was 6

held August 29, 2005; therefore, Booker applied. The departures granted by the court were

departures authorized by the guidelines. As a result, the sentence was not a non-guideline

sentence as no variances were granted.

 In Stratton, I concluded that Booker did not apply in a § 3582(c)(2) proceeding where

7

the original sentencing was pre-Booker. In Doe, as here, the defendants received their original

sentences after the decision in Booker. 564 F.3d at 308. The Third Circuit held that Booker did

not apply to § 3582(c)(2) proceedings. However, because Doe was filed on April 30, 2009, after

briefing was completed here, I will give defendant an opportunity to argue otherwise.

7

Booker, 543 U.S. 220 (2005). Thus, Stewart is eligible for a comparable downward departure

from the amended guideline range pursuant to § 1B1.10(b)(2)(B).

Stewart also argues that, under Booker, which rendered the sentencing guidelines

advisory, the court may grant a reduction greater than that authorized by the amended guidelines.6

The vast majority of courts have rejected this argument. See, e.g., United States v. Doe, 564 F.3d

305, 312-14 (3d Cir. 2009) ; Stratton, 2009 WL 506365, at *7-*11. In determining the amount 7

of reduction warranted in the context of a § 3582(c)(2) proceeding, courts generally do not do an

entire revised § 3553(a) analysis, which Booker requires in an original sentencing. Thus, in

summary, the court will grant defendant’s motion for modification of an imposed term of

imprisonment. I will schedule oral argument on whether Booker applies to this modification of

sentence and an evidentiary hearing for evidence and modification of defendant’s sentence under

§ 3582(c)(2).

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