Memorandum

RICHARD P. CONABOY, District Judge.

We consider here the Government's Motion for Reconsideration (Doc. 64) of our Order (Doc. 57) granting the Defendant's Motion to Correct Sentence (Doc. 53). The Court had granted Defendant's motion out of the perception that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), required the Court to reconsider whether the Defendant should have been characterized as a "career offender" pursuant to Section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G") and, if not, whether that should result in an altered sentence. This Court's Order had required the parties to submit new sentencing memoranda to assist the Court in determining whether Defendant's sentence should be revised. The parties submitted these memoranda (Docs. 53 and 63) but, before the Court reviewed them and made its decision on whether Defendant's sentence should be revised, the Government filed the instant motion. The object of the Government's motion is to preclude the Court from reconsideration of Defendant's sentence and to have the Court reinstate the sentence originally imposed.

The Court will deny the Government's motion to the extent that it takes the position that the more recent case of Beckles v. United States, 2017 WL 855781 (S.Ct. 2017), which establishes that Johnson does not affect the Sentencing Guideline definition of "career offender", precludes the Court from reconsidering Defendant's sentence.1 The Government's motion was based in the alternative on Rules 59(e) and 60(b)(6) of the Federal Rules of Civil Procedure. The Court agrees with Defendant's arguments to the effect that: (1) the Government's motion is untimely for purposes of Rule 59(e) and (2) this situation is not so "extraordinary" as to justify relief under Rule 60(b)(6). Having made these determinations, we once again examine the propriety of the sentence this Court imposed on April 15, 2015.

This Court initially imposed a sentence of 151 months imprisonment. (Doc. 49). The Statement of Reasons filed by the Court in connection with the sentence indicated that Defendant had a "total offense level" of level 31 and was in criminal history category VI. Both the offense level and the criminal history category were inflated due to the perception, reinforced by Paragraph 11 of the Plea Agreement executed by the parties, that Plaintiff was "a career offender" pursuant to USSG Section 4B1.1. The Court also perceived that the advisory Guideline range for offenders that fit Defendant's profile was 188-235 months imprisonment. However, after the Government made "a substantial assistance" motion pursuant to USSG Section 5K1.1, the Court departed downward to sentence Defendant to 151 months imprisonment. At the time sentence was imposed, the Court considered multiple sources of information including the criteria of the USSG, the criteria of 18 U.S.C. Section 3553(a), and all relevant information that had been brought to the Court's attention by the U.S. Probation Office and the parties. The Court then concluded that, under all the circumstances, the sentence imposed was reasonable, just, and consistent with the statutory purposes of sentencing as enumerated at 18 U.S.C. Section 3553(a). While the Court was aware that the parties had stipulated to Defendant's status as a career offender, the Court's focus was Defendant's actual criminal history as set forth in the Presentence Report.

Defendant's argument is predicated on the idea that if the Court accepts, as it does, the premise that he was incorrectly characterized as a "career offender", the Court would then necessarily regard Defendant as having an offense level of 27 and a criminal history category V.2 (See Defendant's Brief, Doc. 53 at 2). This is only partially true. While Defendant's Presentence Report does indicate that, absent "career offender" status, he should be considered a category V offender, the notion that the Court must regard his offense level at level 27 is incorrect. The Presentence Report correctly calculated Defendant's offense level absent the "career offender" enhancement, at level 32. (Doc. 17 at 13). After receiving a three-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1(a) and (b), Defendant then would appropriately be placed at offense level 29. The cross-reference of offense level 29 and criminal history category V in the USSG Sentencing Table (USSG Chapter 5, Part A) produces an advisory sentencing range of 140-175 months imprisonment.

Significantly, the Defendant has not made the Court aware of anything that it did not consider before initially imposing sentence in this case.3 Considering, once again, the Defendant's extensive recidivist behavior over a period of some 15 years, the serious nature of the instant offense, and all the relevant personal data in Defendant's Presentence Report, the Court is convinced that the sentence imposed on April 15, 2015 provides just punishment, reasonably reflects the severity of his offense, provides for the protection of the public and provides for general deterrence of others who might consider committing similar crimes. Defendant's sentence is two years less than that the Court could have imposed without deviating from the advisory sentencing range in this case and, for that reason, makes adequate allowance for the assistance he provided to authorities. Accordingly, having considered the parties' sentencing memoranda and all information in this case file, the Court now concludes that the sentence originally imposed must stand. An Order confirming this result will be filed contemporaneously.