IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

UNITED STATES OF AMERICA )

)
) NO. 3:96-CR-0051
v. ) JUDGE ECHOLS
)
)
MATTHEW OTIS CHARLES )

GOVERNMENT’S RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION FOR REDUCTION OF SENTENCE
AND RESPONSE TO SUPPLEMENT TO PRESENTENCE REPORT

Defendant Matthew Otis Charles has filed a motion requesting that the Court retroactively

reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based upon amendments to the United

States Sentencing Guidelines (“U.S.S.G.”) that reduce the base offense level for crack cocaine

offenses. The Probation Department has prepared a Supplement to the Presentence Investigation

Report dated May 13, 2008 (“Supplement”). The Government has no objections to the Supplement

and adopts the guideline calculations contained therein. The defendant is a career offender. The

defendant’s motion should be denied because application of 18 U.S.C. § 3582(c) does not result in

a lower guidelines range for the defendant.

On May 1, 1996, the defendant was charged in an eight-count Indictment with various

narcotics and weapons charges. On September 20, 1996, the jury returned a verdict of guilty as to

Counts One, Two, Three, Four, Five, Seven and Eight of the Indictment. Counts One, Four, and

Seven of the Indictment were narcotics offenses and Counts Two, Three, Five, and Eight of the

Indictment were firearms offenses. The defendant was acquitted on Count Six of the Indictment.

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 For the narcotics offenses, the original Presentence Investigation Report (“PSR”) determined

that the defendant had a base offense level of 34 based upon 216 grams of cocaine base. Two

additional levels were added pursuant to § 2D1.1(b)(1) because firearms were present. Two

additional levels were added pursuant to § 3C1.1 for obstruction of justice. This resulted in an

adjusted offense level subtotal of 38.

For the firearms offenses, the PSR determined that the defendant had a base offense level

of 24 based on at least two prior convictions of crimes of violence or drug offenses. Two additional

levels were added pursuant to § 2K2.1(b)(1)(B) because the offense involved three or more firearms.

Two additional levels were added pursuant to § 3C1.1 for obstruction of justice. This resulted in

an adjusted offense level subtotal of 28.

The multiple count adjustment under § 3D1.4 did not result in any additional offense levels.

Accordingly, the defendant’s total offense level was a level 38.

Based upon the defendant’s criminal history, the defendant is a career offender under §

4B1.1. The defendant is also an Armed Career Criminal. The PSR determined that as a career

offender, the defendant had an offense level of 38 and a criminal history category of VI. As a

result, the defendant’s guideline sentencing range was 360 months to life.

The Court adopted the factual finding and guideline application in the PSR. The Court

determined that the defendant had a guidelines range for the narcotics offenses of 360 months to life.

The Court also determined that the Armed Career Criminal Act applied (see Statement of Reasons

in Judgment). The Court ultimately sentenced the defendant to 420 months each on Counts One

and Four, 420 months on Count Seven, 120 months each on Counts Two and Three, and 180 months

on Count Five, with the sentences running concurrently. This was a sentence within the defendant’s

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guidelines range. In the Statement of Reasons, the Court indicated that “[t]he sentence is imposed

under the Armed Career Criminal Act applicable and serves the purposes of punishment, deterrence,

and incapacitation.”

Applicable Law

In relevant part, 18 U.S.C. § 3582(c) provides:

The court may not modify a term of imprisonment once it has been
imposed except that . . . 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
pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court
may reduce the term of imprisonment, after considering the factors
set forth in [18 U.S.C. §] 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

On November 1, 2007, the Sentencing Commission issued Amendment 706, as amended by

Amendment 711, to U.S.S.G. § 2D1.1. Amendment 706 generally reduces by two levels the offense

level applicable to crack cocaine offenses. In December 2007, the Sentencing Commission voted

to apply Amendment 706 retroactively to crack offenses. The Sentencing Commission also

promulgated amendments to U.S.S.G. § 1B1.10, which set forth the conditions that must exist before

a defendant is entitled to a sentence reduction as a result of an amended guideline range. The

amended U.S.S.G. § 1B1.10 states in relevant part –

In a case in which a defendant is serving a term of imprisonment, and

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, the court may reduce the defendant's
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As
required by 18 U.S.C. § 3582(c)(2), any such reduction in the
defendant's term of imprisonment shall be consistent with this policy

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 statement.

U.S.S.G. § 1B1.10(a)(1). Section 1B1.10 further states that a reduction in the term of imprisonment

is not appropriate when “an amendment listed in subsection (c) does not have the effect of lowering

the defendant’s applicable guideline range.” 1B1.10(a)(2)(B). Further, the Sentencing Commission

promulgated Amendment 715 to U.S.S.G. §§ 2D1.1 and 1B1.10, setting May 1, 2008 as the date that

amendment could be applied retroactively. Subsection (c) includes Amendments 706, as amended

by 711, and 715, in the list of Amendments covered by the policy statement.

Argument

The defendant is a career offender. The defendant’s motion should be denied because the

amendments to the crack sentencing guidelines do not have the effect of lowering the defendant’s

guideline range, which remains 360 months to life. The amended guideline range is determined by

substituting only the retroactive crack cocaine amendments to the guidelines as applied at the

original sentencing and all other guideline application decisions for the original sentencing remain

unaffected. Amendment 706 did not change the career offender guideline or the statutory

mandatory minimum. See Section 1B1.10, Application Note 1(A) (“a reduction in the defendant’s

term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this

policy statement if . . . an amendment does not have the effect of lowering the defendant’s applicable

guideline range because of the operation of . . . another guideline or statutory provision (e.g., a

statutory mandatory minimum term of imprisonment).”).

Applying the retroactive application of the crack cocaine amendments to the defendant, the

defendant receives a two level reduction in his base offense level for the narcotics offenses. This

decreases the offense level from level 34 to level 32. The defendant does not receive a reduction

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for the other applicable enhancements (firearm presence and obstruction of justice) and has an

adjusted offense level of 36 for the narcotics offenses. The defendant does not receive a reduction

in his guideline range calculations for the firearm offenses.

Under § 3D1.4, the multiple count adjustment results in a one level increase to the

defendant’s offense level, to an adjusted offense level of 37. As a career offender, the defendant

has an offense level of 37 and a criminal history category VI under §4B1.1. With an offense level

of 37 and a criminal history category VI, the defendant’s guidelines range remains unchanged at 360

months to life. Because the amendment to subsection (c) does not have the effect of lowering the

defendant’s applicable guidelines range, a reduction in the defendant’s term of imprisonment is not

authorized under 18 U.S.C. § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B).

Conclusion

For all of the reasons stated above, the government respectfully requests that the defendant’s

motion for reduction of sentence be denied.

Respectfully submitted,

EDWARD M. YARBROUGH
United States Attorney

/s/ Lori S. Glenn

_____________________________
LORI S. GLENN
Assistant United States Attorney

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 CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that a copy of the foregoing pleading was sent via

facsimile to Mariah Wooten, Esq., Assistant Federal Public Defender.

By___/s/ Lori S. Glenn

LORI S. GLENN
Assistant U. S. Attorney

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