UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) 02 CR 635

)

KEVIN TURNER, )

)

Defendant. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This case comes before the court on the motion of Defendant Kevin Turner for

a reduction of his sentence pursuant to 18 U.S.C. § 3582. For the reasons stated below,

Turner’s motion is denied.

BACKGROUND

On October 22, 2003, Turner pleaded guilty to one count of conspiring to possess

with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846. As a

result of Turner’s substantial assistance to the United States, he and the government

entered into a plea agreement pursuant to Fed. R. Crim. P. 11(e)(1)(C). The plea

1

Fed. R. Crim P. 11(e)(1)(C) has since been renumbered and is now found in Rule

1

11(c)(1)(C). See Fed. R. Crim. P. 11 advisory committee’s note on 2002 amendments

(reflecting reorganization of Federal Rules of Criminal Procedure to make them more easily

understood).
agreement stated that the government would ask the Court to depart from the applicable

guidelines range and impose a sentence of 280 months’ imprisonment in exchange for

Turner’s continued cooperation. The government’s proposal represented a significant

departure from the guideline calculation which resulted in a range of 360 months to life

imprisonment for Turner. The court accepted the plea agreement and imposed the

agreed-upon sentence on February 26, 2004.

On January 12, 2006, the government moved pursuant to Fed. R. Crim. P. 35 to

further reduce Turner’ssentence in light of his continued cooperation in the prosecution

of others. On March 13, 2006, we granted the government’s motion and reduced

Turner’s sentence to 180 months.

In 2007, the United States Sentencing Commission issued Amendments 706 and

711 to the sentencing guidelines, “which retroactively reduced by two offense levels

certain crack offenses and provided instruction on how to calculate the base offense

level for offenses involving crack and another drug type.” United States v. Woods, 581

F.3d 531, 537 (7th Cir. 2009). Turner now moves to modify his term of imprisonment

imposed based upon these amendments under 18 U.S.C. § 3582(c)(2).

DISCUSSION

The government contends that Turner is ineligible for a sentence reduction

because the court imposed sentence pursuant to a plea agreement and not based on the

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applicable guideline range. Once a defendant has been sentenced in a criminal case, a

district court can modify the term imposed only in certain circumstances. 18 U.S.C.

§ 3582(c). Section 3582(c)(2) provides that a court may reduce the sentence 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)” (emphasis added). Unless the plea agreement contains explicit

language to the contrary, “a sentence imposed pursuant to a Fed. R. Crim P. 11(c)(1)(C)

plea agreement cannot be said to be ‘based on’ the Sentencing Guidelines” under

§ 3582(c)(2). United States v. Ray, 598 F.3d 407, 411 (7th Cir. 2010). The court

imposed Turner’s original sentence upon acceptance of a Rule 11(c)(1)(C) agreement

between Turner and the government. Under these circumstances Turner isineligible for

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

Moreover, even if Turner’s sentence had been determined according to the

Sentencing Guidelines, Amendments 706 and 711 do not lower the sentencing range

that would have applied in Turner’s situation. In his guilty plea, Turner admitted

responsibility for over 150 kilograms of powder cocaine. Even if we entirely discounted

the crack cocaine for which Turner was responsible, his base offense level would

remain at 38 based solely on the amount of powder cocaine for which he assumed

responsibility. See United States v. White, 582 F.3d 787, 798-99 (7th Cir. 2009). In

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short, the quantity of powder cocaine in this case would render § 3582(c) inapplicable

to Turner’s case.

Finally, the fact that we previously granted a motion to modify Turner’ssentence

under Fed. R. Crim. P. 35 does not alter the outcome in this instance. A defendant who

previously obtained a sentence reduction pursuant to Rule 35 based upon considerations

that are “in no way based on or affected by [the] otherwise applicable sentencing range”

may not seek further modification of his or her sentence under 18 U.S.C. § 3582(c).

United States v. Poole, 550 F.3d 676, 680 (7th Cir. 2008). We granted the government’s

Rule 35 motion for reasonsindependent of the relevant guideline range. Turner may not

premise his eligibility for modification of his sentence under 18 U.S.C. § 3582(c) upon

our order granting the government’s motion under Fed. R. Crim. P. 35.

CONCLUSION

Turner’s motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) is

denied.

Charles P. Kocoras

United States District Judge

Dated: May 10, 2010

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