United States District Court, District of Massachusetts
OPINION AND ORDER
George A. O’Toole, Jr. United States District Judge
On February 5, 2009, Timothy Brown was convicted by a jury of possession of at least five grams of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Brown received a 180 month sentence of incarceration. His conviction was affirmed by the First Circuit, and the Supreme Court denied certiorari. United States v. Brown, 621 F.3d 48 (1st Cir. 2010); Brown v. United States, 131 S.Ct. 2126 (2011).
On November 3, 2011, Brown filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a post-sentence adjustment made by the United States Sentencing Commission to the principal drug crime guideline, U.S.S.G. § 2D1.1. Eventually counsel was appointed and the issue has been thoroughly and carefully briefed.
On April 18, 2012, exactly one year from the date of the Supreme Court’s denial of his petition for certiorari, Brown mailed to the Clerk of this Court a pro se motion to vacate his sentence under 28 U.S.C. § 2255. The motion asserted three grounds for the requested relief: (1) ineffective assistance of counsel in failing “to advise the petitioner as to whether the petitioner should accept or reject a plea offer by the government, ” (2) ineffective assistance that “deprived the petitioner of an otherwise available, substantial ground of defence” [sic], and (3) ineffective assistance in failing “to challenge the seizing officer search of vehicle stop before trial.” (Mot. to Vacate at 6-9 (dkt. no. 96).) Brown submitted a brief pro se memorandum with the motion.
On August 5, 2013, Brown mailed to the Court a motion for leave to supplement his pending § 2255 motion by adding a claim based on irregularities that occurred in the Massachusetts state drug laboratory that had weighed and tested the drugs used in evidence against him at his trial. On August 30, 2013, retained counsel on Brown’s behalf filed a further motion under § 2255 to set aside his guilty verdict or reduce his sentence, again based on the state drug laboratory issue. Eventually, both Brown (through counsel) and the government briefed that issue.
This order resolves the various pending issues.
I. Motion to Reduce Sentence
Brown was sentenced to 180 months imprisonment on May 26, 2009. On November 1, 2011, the United States Sentencing Commission promulgated Amendment 750, which decreased the recommended sentencing range for the crack cocaine guidelines in § 2D1.1. Brown argues that his sentence should be reduced in light of Amendment 750’s retroactive effect.
A court may reduce a defendant’s sentence where it is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 750 changed the guideline range applicable to crack cocaine offenses calculated under § 2D1.1. Brown was convicted of possession of at least five grams of cocaine base with the intent to distribute it. Under the Sentencing Guidelines in effect at the time of his sentencing, the base offense level for this crime was 24. Calculated solely on the basis of the criminal history points assigned pursuant to Chapter 4 of the Guidelines, his criminal history category would have been VI, and the recommended sentencing range pursuant to the table would have been 100 to 125 months. Brown, however, qualified as a career offender under § 4B1.1, and his offense level was thus established at 34, instead of 24, increasing the advisory sentencing range to 262 to 327 months.
Brown’s sentence of 180 months lay between the lower range calculated according to the nature and quantity of the drug involved under §2D1.1 and the higher range calculated according to the career offender guideline. While I imposed a sentence below the career offender range, I did not base the sentence on the nature and quantity of the drug involved under § 2D1.1. Accordingly, his sentence was not “based on” § 2D1.1, and § 3582(c) does not authorize a reduction because of a later amendment to that guideline. United States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008) (“[I]f an amended guideline does not have the effect of lowering the sentencing range actually used at the sentencing, the defendant’s sentence was not based on that range within the intendment of the statute.”).
Under United States v. Cardosa, 606 F.3d 16 (1st Cir. 2010), a career offender may nevertheless be entitled to the benefit of amendments to the crack cocaine guidelines where a court deviates from the career offender guidelines and instead relies on another guideline. Id. at 20. The Cardosa exception is inapplicable here. At the sentencing hearing defense counsel argued for a sentence within the range calculated under § 2D1.1, but I explained that career offender considerations were more important than the considerations addressed by that guideline provision:
And so the career offender, because it’s driven not only be the facts of the case and the nature of the offenses, including quantities, but by the criminal history of the defendant as opposed to quantities, calls for a different assessment.
(Sentencing Tr. at 13 (dkt. no. 84).) While the sentence I imposed fell below the recommended career offender range, the defendant’s criminal history was “a prominent factor” in his sentence. (Id. at 14.) In fact, to emphasize the importance of Brown’s criminal history in my sentencing judgment, I observed that “[e]ven apart from the technical use of the term ‘career offender’ as we take it from the [G]uidelines, in [the] ordinary use of the English language Mr. Brown is a career offender.” (Id.)
Because his sentence was not “based on” the amended guideline provision, Brown’s motion ...