but the amendment does not have the effect of lowering the defendant’s applicable
Guideline range); see also United States v. Roa-Medina, 607 F.3d 255, 260-61 (1st Cir.
2010) (holding that a sentence reduction under 18 U.S.C. § 3582(c)(2) was not available
because the amendment does not have the effect of lowering the defendant's applicable
Guideline range); United States v. McFadden, 523 F.3d 839, 840-41 (8th Cir.2008)
(concluding that, unless the applicable sentencing range changes, a reduction in the base
offense level does not allow for a sentence reduction).

CONCLUSION

For the reasons set forth above, Moore’s Motion for Sentence Reduction under

18 U.S.C. § 3582(c)(2) [73] is denied.

‘
()
Date: 17 20fe— } if rrUpA___-

JOHN W. DARRAHTM
Unitéd States District Court Judge



In Moore’s case, Amendment 750 does not have the effect of further lowering the
Guideline range that the Court used to re-calculate Moore’s sentence after he filed his
March 24, 2008 motion for reduction of sentence, as mentioned above. In 2008, Moore’s
total offense level was 35 and the Guideline range based on Amendment 715 was 210 to
262 months’ imprisonment.

Now, under the Drug Quantity Table altered by Amendment 750, Moore’s base
offense level is 34. This is the base offense level that corresponds to at least 840 grams
but less than 2.8 kilograms of crack.’ See USSG § 2D1.1(c). Moore stipulated that he
distributed in excess of 1,000 grams of crack. When combined with the other Guideline
enhancements and reductions made at the time of Moore’s sentencing (as set out above),
Moore’s revised total offense level is 33. With a criminal history category of V, Moore’s
revised Guideline range is 210 to 262 months’ imprisonment. This range is identical to
the one used by the Court to re-calculate Moore’ sentence on May 1, 2008, when the
Court reduced Moore’s sentence to 235 months’ imprisonment.

“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 § 1B 1.10(a)(2)(B). Therefore, because the
applicable Guideline range is the same as the 2008 Guideline range used by this Court,
Moore is not entitled to a further reduction of his 235-month sentence. See also
USSG § 1B1.10, comment. (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

" Moore argues that his revised offense level is now 28. This is not supported by
the revised Drug Quantity Table.



NG

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )
) Case No. 04 CR 676-1

WILLIAM MOORE, )
) Judge John W. Darrah

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant William Moore’s Motion for
Sentence Reduction under 18 U.S.C. § 3582(c)(2), based on Amendment 750, filed on
November 18, 2011. The Government filed a response on November 22, 2011. Counsel
was appointed at the December 6, 2011 status hearing.

BACKGROUND

On January 26, 2005, pursuant to a written plea agreement, Moore pled guilty to
two counts of knowingly and intentionally distributing cocaine base (“crack”), in
violation of 21 U.S.C. § 841(a)(1). On February 15, 2006, Moore was sentenced by this
Court to a term of 294 months’ imprisonment. In his plea agreement, Moore stipulated
that he had manufactured and distributed over 1,000 grams of crack cocaine. Moore’s
base offense level was 35, which was calculated by starting at a base offense level of 36,
pursuant to United States Sentencing Guidelines (“USSG”) § 2D1.1(c)(2), for an amount
of crack cocaine between 500 grams and 1.5 kilograms. Moore then received a two-level

enhancement, pursuant to § 3B1.1, based on an aggravating role in the offense. Moore



also received a three-level reduction, pursuant to § 3E1.1(a) and § 3E1.1(b), for
acceptance of responsibility. Based on his criminal history, Moore received a criminal
history category of V. With a combined offense level of 35 and a Criminal History
Category V, Moore’s Guidelines range was 262 months to 327 months’ imprisonment.

On March 24, 2008, Moore filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), for
a reduction of sentence, based on Amendment 715, which became effective May 1, 2008,
but was retroactive. Amendment 715 modified the Commentary to § 2D1.1 to revise the
manner in which combined offenses are calculated in cases involving cocaine base
(crack) and other controlled substances. See USSG, Supplement to App. C, Amend. 715.
Moore’s revised offense level was 33, and, when combined with a criminal history
category of V, his resulting Guidelines range was 210 to 262 months’ imprisonment. On
May 1, 2008, the Court reduced Moore’s sentence to 235 months’ imprisonment.

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. Id.
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

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. Jd. at
41332.
Moore seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 750 to the Sentencing Guidelines. 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.

Amendment 750 retroactively alters the base offense levels applicable to crack offenses
under § 2D1.1 of the Sentencing Guidelines.

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
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.