United States District Court, D. Montana, Helena Division
Charles C. Lovell Senior United States District Judge
Tracy Eldon Lewis requests that the Court reduce his sentence
pursuant to Amendment 782 to the United States Sentencing
Guidelines (Doc. 153) and the First Step Act. (Doc. 155).
Defendant also asks the Court to appoint counsel. (Doc. 154).
The United States opposes Defendant's "First Step
Act Motion" (Doc. 157), but has filed no response to the
motion for reduction of sentence under Amendment 782.
Lewis appeared before the Court on August 19, 2005, and
entered a guilty plea to the first three counts of the
indictment, which charged him with conspiracy to distribute,
possession with intent to distribute and distribution of at
least 500 grams of a mixture or substance containing a
detectable amount of methamphetamine.
appeared for sentencing on November 17, 2005, There were no
objections to the Presentence Report, which calculated his
offense level at 34, based on his designation as a career
offender pursuant to U.S.S.G. § 4B1.1(a). His criminal
history category was VI, resulting in a guideline range of
262 to 327 months. Defendant Lewis faced a mandatory life
sentence, based on the government's filing of an
Information under 21 U.S, C. § 851. The Court departed
below the mandatory minimum on the basis of a motion made by
the United States and sentenced Defendant to a term of
imprisonment of 290 months (the middle of the advisory
guideline range) on each count, to be served concurrently.
relies on United States v. Calton to argue that he
is entitled to a reduction of sentence under Amendment 782 to
the United States Sentencing Guidelines, (Doc. 153 at 1).
Defendant also argues that he is entitled to a reduction of
sentence under the First Step Act because he served less than
twelve months on one of his predicate sentences. (Doc. 155 at
1). In his reply to the government's response to his
"First Step Act" argument, Defendant acknowledges
that the First Step Act cannot be applied retroactively.
(Doc. 158 at 1), He nevertheless argues that the Court should
order his immediate release because he is not the same man he
was when the Court imposed sentence.
is not entitled to a reduction in sentence based on Amendment
782 because he was sentenced as a career offender. The Ninth
Circuit has determined that "retroactive amendments
regarding sentences under the drug guidelines do not affect
individuals who were sentenced as career offenders."
United States v. Charles, 749 F.3d 767, 770
(9th Cir. 2014). Defendant's reliance on
United States v. Calton is misplaced. The defendant
in that case was not sentenced as a career offender because
her "drug-quantity-based offense level was higher than
her career-offender offense level" and Amendment 782
therefore did not apply to her sentence. 900 F.3d 706, 715
(5th Cir. 2018). The instant case is
distinguishable from Calton because Defendant
Lewis's career-offender-offense level was higher than his
drug-quantity-based offense level. He was therefore sentenced
based on the career-offender offense level and not the
drug-quantity-based offense level. Defendant Lewis is not
eligible for a reduction in sentence under Amendment 782.
correctly points out that the First Step Act of 2018 changed
the definition of a prior qualifying drug conviction and now
requires that a defendant serve at least twelve months for
the prior drug conviction. The amendments made by Pub. L.
115-391, § 401 only apply to an offense committed before
its December 21, 2018, enactment if the sentence for such
offense was imposed after December 21, 2018. The provisions
of the First Step Act do not apply to Defendant's
sentence, which was imposed in 2010.
final argument in support of a reduction in sentence appeals
to the Court's "power to do what you believe is
fair." (Doc. 158 at 1). Defendant may be attempting to
raise an argument for modification of his sentence based on
"extraordinary and compelling reasons" as permitted
by 18 U.S.C. § 3582(c)(1). Prior to December 21, 2018, a
court could only modify a sentence under this section in
response to a motion made by the director of the Bureau of
Prisons. The First Step Act modified 18 U.S.C. §
3582(c)(1) and now allows a defendant to make such a motion,
once he has exhausted his administrative remedies. United
States v. Gross, No. 2:04-CR-32-RMP, 2019 WL 2437463, at
*2 (E.D. Wa. Jun. 11, 2019). There is nothing in the record
before the Court indicating that Defendant has exhausted his
is not entitled to a sentence reduction based on Amendment
782 to the drug guidelines because his offense level was
determined based on his career offender status, not on the
drug amount. He is not entitled to a reduction in sentence
under the First Step Act because Congress did not intend the
applicable provision to be applied retroactively. He cannot
seek a sentence modification under 18 U.S.C. §
3582(c)(1) until he has exhausted his administrative
remedies. Accordingly, IT IS HEREBY ORDERED that
Defendant's motions to reduce sentence (Docs. 153 and
155) are DENIED.
having demonstrated his ability to articulate his claims for
relief, IT IS FURTHER ORDERED that Defendant's Motion for