is eligible for a reduction of sentence, “the second step of the analytical framework set
forth in Dillon requires the district court ‘to consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction authorized by reference to the policies
relevant at step one is warranted in whole or in part under the particular circumstances of
the case.’” Dillon, 130 S.Ct. at 2692.

In Caldwell’s case, Amendment 750 does not have the effect of further lowering
the Guideline range that the Court used to re-calculate Caldwell’s sentence after he filed
his 2008 motion for reduction of sentence. In 2008, Caldwell’s total offense level was 35
and the Guideline range, based on Amendment 715, was 210 to 262 months’
imprisonment.

Under the Drug Quantity Table altered by Amendment 750, Caldwell’s base
offense level is 36.!_ When combined with the other Guideline enhancements and
reductions made at the time of Caldwell’s sentencing (as set out above), Caldwell
concedes that his revised total offense level remains 35. With a criminal history category
of III, Caldwell’s revised Guideline range is 210 to 262 months’ imprisonment. This
range is identical to the one used by the Court to re-calculate Caldwell’s sentence on June
10, 2008, when the Court reduced Caldwell’s sentence to 140 months’ imprisonment (or

100 months’ imprisonment, taking into account the 40-month credit).

1 Using the drug equivalency tables to translate each drug into marijuana, three
kilos of heroin equals 3,000 kilograms of marijuana. Fifteen kilograms of cocaine
translates to 3,000 kilograms of marijuana. 1.5 kilograms of crack equals 5,356
kilograms of marijuana. In total, this equals approximately 11,356 kilograms of
marijuana, which corresponds to an offense level of 36 under § 2D1.1.



does not apply to Caldwell as he was sentenced before Amendment 709 went into effect.
See U.S. v. Ahrendt, 560 F.3d 69, 78-79 (1st Cir. 2009).
CONCLUSION
For the reasons set forth above, Caldwell’s Motion for Sentence Reduction under

18 U.S.C. § 3582(c)(2) [185] is denied.

pate 2° / 2 Wt Ne

1OHN W. DARRAH
oN States District Court Judge



Amendment 750 in Appendix C of the Sentencing Guidelines. See 76 Fed.Reg. 41332-35
(July 13, 2011). Amendment 750 went into effect on November 1, 2011. Id. at 41332.
Caldwell seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2)
based on Amendment 750 to the Sentencing Guidelines and based on § 4A1.2, which
amended the manner in which criminal history points were calculated. Each will be
discussed in turn.
First, in relevant part, § 3582(c)(2) provides:
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 . . . 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.

Importantly, Section 1B1.10(a)(2)(B) provides that “[a] reduction ... is not authorized
under 18 U.S.C. § 3582(c)(2) if... an amendment listed in subsection (c) does not have
the effect of lowering the defendant’s applicable guideline range.”

USSG § 1B1.10(a)(2)(B) (emphasis added).

In Dillon v. United States, 130 S.Ct. 2683 (2010) (Dillon), the United States
Supreme Court set forth a two-step inquiry for determining whether a reduction of
sentence under 18 U.S.C. § 3582(c) is warranted. First, the district court must determine
whether the defendant is eligible for a sentence reduction. Dillon, 130 S.Ct. at 2691. To
determine eligibility, “the court shall determine the amended guideline range that would
have been applicable to the defendant if [Amendment 750] had been in effect at the time
the defendant was sentenced. In making such determination, the court shall . . . leave all

other guideline application decisions unaffected.” USSG § 1B1.10(b)(1). If a defendant


“A reduction... is not authorized under 18 U.S.C. § 3582(c)(2) if... an
amendment listed in subsection (c) does not have the effect of lowering the defendant's
applicable guideline range.” USSG § 1B1.10(a)(2)(B). Therefore, because the
applicable Guideline range is the same as the 2008 Guideline range used by this Court,
Caldwell is not entitled to a further reduction of his 235-month sentence. See, e.g.,
USSG § 1B1.10, cmt. (n.1) (making clear that a reduction is not authorized under 18
U.S.C. § 3582(c)(2) if an amendment in subsection (c) is applicable to the defendant but
the amendment does not have the effect of lowering the defendant’s applicable Guideline
range).

Caldwell argues that this analysis is flawed because the Court, pursuant to
§ 1B1.10(b)(1) must consider “whether at the time of [Caldwell’s] original sentencing,”
his Guideline range would have been reduced. (Reply at 5 (emphasis added).)
Caldwell’s argument has no merit. The above analysis recalculates Caldwell’s sentence
had Amendment 750 been in effect at the time of his original sentencing in 2007.
Caldwell concedes that his adjusted offense level would be 35, which, combined with a
criminal history category III, would result in a Guideline range of 210 to 262 months’
imprisonment. But Caldwell then proceeds to entirely ignore that the Court previously
reduced Caldwell’s sentence in 2008. Because Caldwell already has the benefit of
Amendment 750, by virtue of the reduction in sentence in 2008, Caldwell is not entitled
to any further reduction of sentence. See USSG § 1B 1.10(a)(2)(B).

Caldwell also argues that when Caldwell was sentenced in 2008, Caldwell did not

receive the 40-month credit for serving time in Case No. 03 CR 899. This is contradicted


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )
) Case No. 03 CR 962-1

MARTIN CALDWELL, )
) Judge John W. Darrah

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant Martin Caldwell’s Motion for
Sentence Reduction under 18 U.S.C. § 3582(c)(2). The Government filed a response, and
Caldwell filed a reply. Caldwell is represented by counsel.

BACKGROUND

On May 10, 2006, pursuant to a written plea agreement, Caldwell pled guilty to
one count of “conspiring with others to possess with intent to distribute in excess of
500 grams mixtures containing cocaine; in excess of 50 grams of mixtures containing
cocaine base in the form of crack cocaine; in excess of 100 grams of mixtures containing
heroin; and mixtures containing marijuana, in violation of . . . [21 U.S.C. § 841(a)(1).]”
(Dkt. No. 119 at §§ 1, 3.)

In his plea agreement, Caldwell stipulated that he had distributed, during the
course of the conspiracy, between 5 and 15 kilograms of cocaine, 3 and 10 kilograms of

heroin, and at least 1.5 kilograms of crack cocaine. (Id. §5.) Caldwell further stipulated


by the record. On November 12, 2008, Caldwell again filed a motion for clarification
regarding his amended reduced sentence, raising the issue of whether he has received his
40-month credit. The Government filed a response, to which it attached the declaration
of James Hazelton of the Bureau of Prisons, in which he made clear that Caldwell has
indeed received the 40-month credit.” (See Dkt. No. 169-2.)

Second, Caldwell argues that he is entitled to a reduction of his sentence based on
an amendment of § 4A1.2, which modified the way certain prior convictions affect a
defendant’s criminal history calculation. This amendment, Amendment 709, became
effective November 1, 2007, after Caldwell was sentenced. Because the amendment is
not retroactive, it does not apply to Caldwell.

Section 1B1.10(a)(1) provides that a court may reduce a defendant’s term of
imprisonment if the “guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed in subsection
(c) below.” Thus, the retroactivity of amendments to the Guidelines is determined by the
inclusion of such an amendment under USSG § 1B1.10(c). Section 1B1.10(c) does not

list Amendment 709 as one of the retroactive amendments. Therefore, this amendment

? Nor is Caldwell’s argument that his release date should be January 2011
persuasive. Caldwell argues that “If all the time since Mr. Caldwell has been in custody
counted toward his sentence, Mr. Caldwell should have been released in January 2011.”
(Reply at 4.) In 2008, Caldwell’s sentence was amended to 140 months. Therefore, as of
February 7, 2008, when Caldwell was sentenced, he would have to serve 140 months less
the 40-month credit. Accordingly, Caldwell had to serve 100 months. As of
February 7, 2008, Caldwell had served approximately 60 months. Therefore, with
consideration for good-conduct time, Caldwell’s release date of July 12, 2013 is correct.


that he was in possession of firearms during his involvement in the distribution of
narcotics. (Id.)

Based on the stipulated drug quantities, Caldwell’s base offense level was 38
pursuant to United States Sentencing Guidelines (“USSG”) § 2D1.1(a)(3) and
§ 2D1.1(c)(1). Caldwell received a two-level enhancement pursuant to § 2D1.1(b)(1)
because he was in possession of firearms in connection with the offense. Caldwell also
received a three-level reduction, pursuant to § 3E1.1(a) and § 3E1.1(b), for acceptance of
responsibility. Therefore, Caldwell’s adjusted base offense level was 37. Caldwell’s
criminal history computation resulted in a criminal history category of II]. Caldwell’s
Guideline range was 262 to 327 months’ imprisonment. Because of Caldwell’s
cooperation, the Government filed a motion pursuant to § 5K1.1 to reduce Caldwell’s
sentence by one-third of the applicable Guideline range. Accordingly, Caldwell was
sentenced to 174 months’ imprisonment, to run concurrent to Caldwell’s sentence in
03 CR 899.

On June 22, 2007, Caldwell filed a Motion to Clarify Judgment, explaining that
the Bureau of Prisons had not properly credited Caldwell for the 40 months he was in
custody in connection with Case No. 03 CR 899 before he was sentenced on
February 8, 2007. The Court entered an Amended Judgment on June 27, 2007, clarifying
that Caldwell is “to be imprisoned for a total uninterrupted term of 134 months to run
concurrently to 03-cr-899. [T]he 134-month sentence reflects credit for the 40 months

served in case number 03-cr-899.” (Dkt. No. 146.)


In 2008, Caldwell filed a motion, seeking reduction of his sentence pursuant to 18
USS.C. § 3582(c)(2), based on Amendment 715, which became effective May 1, 2008,
but was retroactive. Amendment 715 modified the Commentary to § 2D1.1 and, in
relevant part, reduced the base offense levels for certain quantities of crack cocaine by
two levels. See USSG, Supplement to App. C, Amend. 715.

Caldwell’s revised offense level was 35, and, when combined with a criminal
history category of III, his resulting Guideline range was 210 to 262 months’
imprisonment. On June 10, 2008, based on Caldwell’s cooperation credit pursuant to
§ S5K1.1, Caldwell was sentenced to 140 months’ imprisonment, to run concurrent with
the sentence in 03 CR 899. To put it another way, Caldwell received credit for his 40
months of custody prior to sentencing, resulting in a remaining term of 100 months’
imprisonment as of February 8, 2007.

ANALYSIS

The Fair Sentencing Act of 2010 (the “Act) reduced the disparity between
sentences related to cocaine and sentences related to crack. Pub. L. No. 111-220, 124
Stat. 2372 (2010). The Act reduced the statutory penalties for crack offenses and
contained directives, requiring the Sentencing Commission to amend the Guidelines. Jd.
at 2372-75. Amendment 748 to the Sentencing Guidelines, which was made effective on
November 1, 2010, amended the Drug Quantity Table in § 2D1.1 of the Sentencing
Guidelines. See USSG, App. C, Vol. III at 374-81. On June 30, 2011, the Sentencing

Commission voted to give Amendment 748 retroactive effect, to be designated as