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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION

v. : NO. 05-69

:

BONTHAN EIRNG :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. OCTOBER 23, 2008

Bonthan Eirng (“Petitioner”) is serving a 240-month

term of imprisonment for offenses involving the possession and

distribution of crack cocaine. He now seeks the reduction of his

sentence to reflect Amendment 706 to the United States Sentencing

Commission Guidelines (the “Guidelines”), which altered § 2D1.1

of the Guidelines to reduce the sentencing ranges applicable to

crack cocaine offenses. Because Petitioner was sentenced as a

career offender with a Guidelines range that is unaffected by

Amendment 706, his motion will be denied.

I. BACKGROUND

A. Petitioner’s Sentence

On October 4, 2005, Petitioner was sentenced for

possession with intent to distribute more than 50 grams of crack

cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The

base offense level under the Guidelines for the crack offense was

Case 2:05-cr-00069-ER Document 63 Filed 10/24/08 Page 1 of 8
This ratio was derived from the 100-to-1 ratio created 1

by Congress in its statutory mandate of minimum sentences for

cocaine offenses. See Anti-Drug Abuse Act of 1986, 21 U.S.C. §

841(b)(1) (requiring a five-year mandatory minimum penalty for a

first-time trafficking offense involving 5 grams or more of crack

cocaine, or 500 grams of powder cocaine).

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34, his adjusted offense level was 31, his criminal history

category was II, and his resulting Guidelines range was 121 to

151 months. However, pursuant to § 841(b)(1)(A), Petitioner was

subject to a mandatory minimum sentence of 20 years because he

was previously convicted of a felony controlled substance

violation under 35 Pa. C.S.A. § 780-113(30) in Pennsylvania for

possession with intent to deliver crack cocaine. Petitioner

received the statutory mandatory minimum sentence of 240 months,

to be followed by 10 years of supervised release.

B. Changes to the Sentencing Guidelines

On November 1, 2007, the United States Sentencing

Commission (the “Commission”) adopted Amendment 706 to the

Guidelines to address what the Commission had come to view as

unwarranted disparities in the sentences of defendants who

possess or distribute various forms of cocaine. Prior to

November 1, 2007, the Guidelines provided for a 100-to-1 ratio in

sentences for crimes involving cocaine powder compared to those

involving crack cocaine. For example, § 2D1.1 of the Guidelines 1

provided the same base offense level for a crime involving 150

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kilograms or more of cocaine powder and for one involving 1.5 or

more kilograms of crack cocaine. U.S.S.G. § 2D1.1(c)(1) (2006).

Under the November 1, 2007 amendment, the ratio between

powder and crack sentences has been decreased. For example, 150

kilograms of cocaine powder is now treated as the equivalent of

4.5 kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2007). The

bottom line for individual defendants is that a defendant

sentenced under § 2D1.1 for a crack offense after November 1,

2007 receives a base offense level that is two levels lower than

what he would have received for the identical offense if he had

been sentenced before the November 1, 2007 amendment. 2 Federal

Sentencing Guidelines Manual app. C 1160 (“Appendix C”).

The Commission also altered the calculation of base

offense levels for offenses involving crack cocaine and other

controlled substances to reduce the impact of a crack cocaine

conviction. Id. at 1158-59. The base offense level for these

offenses is determined by converting the amount of each substance

into a comparable amount of marijuana and then determining the

base offense level for that amount of marijuana. U.S.S.G. §

2D1.1, comment 10(A)-(E). Amendment 706 provides that a given

amount of crack cocaine translates into a lesser quantity of

marijuana than it did under the old Guidelines. Appendix C at

1158; compare U.S.S.G. § 2D1.1 (2007), with U.S.S.G. § 2D1.1

(2006). Thus, post-amendment Guidelines ranges for crimes

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involving cocaine base and other controlled substances are also

lower than ranges for the same crimes pre-amendment.

The Commission based Amendment 706 on “its analysis of

key sentencing data about cocaine offenses and offenders; [a]

review[] [of] recent scientific literature regarding cocaine use,

effects, dependency, prenatal effects, and prevalence; research[]

[on] trends in cocaine trafficking patterns, price, and use; [a]

survey[] [of] the state laws regarding cocaine penalties; and

[the Commission’s] monitor[ing] [of] case law developments.” 

Appendix C at 1159-60. This information led to the conclusion

that “the 100-to-1 drug quantity ratio significantly undermines

various congressional objectives set forth in the Sentencing

Reform Act and elsewhere.” Id. at 1160. The Commission

“predicts that, assuming no change in the existing statutory

mandatory minimum penalties, this modification to the Drug

Quantity Table will affect 69.7 percent of crack cocaine offenses

sentenced under § 2D1.1 and will result in a reduction in the

estimated average sentence of all crack cocaine offenses from 121

months to 106 months . . . .” Id. at 1160-61.

II. MOTION FOR RESENTENCING

Petitioner moves, pursuant to 18 U.S.C. § 3582, for a

reduction of his sentence because of recent changes to the

Guidelines in the treatment of offenses involving crack cocaine.

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A. Section 3582 and the Inapplicability of the Statutory

Mandatory Minimum Sentence under § 841(b)(1)(A)

Petitioner’s motion must be denied because the Court

lacks the authority under § 3582 to reduce Petitioner’s sentence. 

Section 3582(c)(2) provides the authority to reduce a sentence

only if “such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission” and the

applicable policy statement, § 1B.10(a), provides that if “the

guideline range applicable to th[e] defendant has . . . been

lowered as a result of an amendment to the Guidelines Manual

listed in subsection (c) below, a reduction in the defendant’s

term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2).” 

U.S.S.G. § 1B.10(a).

Thus, “a reduction under § 3582(c)(2) is not authorized

unless an amendment reducing the applicable guidelines range is

among those listed in § 1B.10(c) [of the Guidelines].” United

States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008); see, e.g.,

United States v. Sharkley, – F.3d –, 2008 WL 4482893, at *2 (10th

Cir. Oct. 7, 2008) (refusing to reduce sentence for crack cocaine

violation when amendment did not apply to the defendant’s

situation); United States v. McFadden, 523 F.3d 839, 840-41 (8th

Cir. 2008) (same); United States v. Peter, 524 F.3d 905, 906-07

(8th Cir. 2008) (holding reduction in sentence for a crack

cocaine violation was inappropriate when the defendant was

sentenced to the statutory mandatory minimum); United States v.

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Jones, 523 F.3d 881, 882 (8th Cir. 2008) (same); United States v.

McGuire, 524 F.3d 891, 892 (8th Cir. 2008) (same); United States

v. Hanlin, 48 F.3d 121, 125 (3d Cir. 1995) (upholding sentence

when the defendant was sentenced to the statutory mandatory

minimum).

Here, Petitioner is not eligible for a reduction under

Amendment 706 because he was sentenced to the statutory mandatory

minimum under § 841(b)(1)(A). As a result, Amendment 706 does

not affect Petitioner’s sentence; Petitioner was and still would

be subject to a twenty year mandatory minimum sentence regardless

of the revisions to § 2D1.1.

B. Booker and Kimbrough Do Not Provide the Authority to

Resentence Petitioner

Petitioner also argues that § 1B1.10 renders § 2D1.1

“effectively mandatory,” in contravention of the Supreme Court

holdings in United States v. Booker and Kimbrough v. United

States. See Booker, 543 U.S. 220 (2005) (holding Guidelines are

advisory); Kimbrough, 128 S. Ct. 558 (2007) (permitting district

courts to take unwarranted sentencing disparities into

consideration). Specifically, Petitioner suggests that the

“Court [should] go beyond [Amendments 706 and 711] by reducing

his sentence proportionately with that of powder cocaine.” 

Pet’r’s Reply 1-2 (doc. no. 62). This argument does not carry

the day.

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The Court recognizes that the Guidelines are advisory

and unwarranted sentencing disparities can be considered as part

of the sentencing equation. However, Congress’s directive that

sentences are final unless reduction would be consistent with the

Guidelines policy statements is controlling. The Court may not,

under § 3582, reduce Petitioner’s sentence when the applicable

Guideline range has not been addressed by Amendment 706. See,

e.g., Carrington v. United States, 503 F.3d 888, 890-91 (9th Cir.

2007) (finding Booker is not pari passu with an amendment to the

Guidelines sufficient to provide a basis for reducing a

defendant’s sentence under § 3582(c)(2)); United States v.

Carter, 500 F.3d 486, 490-91 (6th Cir. 2007) (same); McMillan v.

United States, 257 F. App’x 477, 479 (3d Cir. 2007) (not

precedential) (same); Cortorreal v. United States, 486 F.3d 742,

744 (2d Cir. 2007) (holding Booker cannot be the basis for a

reduction of sentence under § 3582(c)(2)).

III. CONCLUSION

For the reasons set forth above, the motion for a

reduction in sentence will be denied. An appropriate order

follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION

v. : NO. 05-69

:

BONTHAN EIRNG :

O R D E R

AND NOW, this 23 day of October 2008, it is hereby

ORDERED that, for the reasons set forth in the accompanying

memorandum, the motion for reduction of sentence pursuant to 18

U.S.C. § 3582c(2) (doc. no. 55) is hereby DENIED.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

 EDUARDO C. ROBRENO, J.

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