The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Defendant was convicted upon his guilty plea of one count of conspiracy to possess with intent to distribute and distribution of cocaine base, cocaine, heroin and MDMA in violation of 21 U.S.C. §§ 841(a) & 846. At the time of sentencing, the Court found Defendant to have an offense level of 23 and a criminal history category of IV, resulting in a presumptive United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") range of 70 to 87 months incarceration. Due to Defendant's prior drug conviction, the Court found that the ten (10) year mandatory minimum sentence of 21 U.S.C. § 841(b)(1) applied. The government moved for a downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 based on defendant's substantial assistance. The Court granted the motion and, on January 19, 2006, imposed a sentence of sixty (60) months incarceration.
Defendant now moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 1B1.10, in light of Amendment 706 to the Guidelines reducing the base offense level listed on the drug quantity table for most cocaine base (crack cocaine) offenses. See U.S.S.G. § 2D1.1(c); Def. Motion (dkt. # 477). If Defendant's motion is granted he will be eligible for immediate release, effective March 3, 2008. For the reasons set forth below, the motion is denied.
The applicable statute providing authority for the Court to re-sentence a defendant in these circumstances is 18 U.S.C. § 3582(c)(2). This provides:
[I]n 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 section 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)(emphasis added).
The applicable policy statement issued by the Sentencing Commission is U.S.S.G.
§1B1.10 ("Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)"). This provides in pertinent part:
(2) Exclusions. - A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if- * * *
(B) [the crack cocaine sentence reduction amendment] does not have the effect of lowering the defendant's applicable guideline range.
(3) Limitation.-Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.
U.S.S.G. § 1B1.10(a)(2)-(3).
Where a particular case involves a statutory mandatory minimum sentence that exceeds the applicable Guidelines range, the Court must set the Guidelines sentence at the statutorily required minimum. U.S.S.G. § 5G1.1(b); United States v. Johnson, - F.3d -. -, 2008 WL 516518, at *4 (8th Cir. Feb. 28, 2008). Thus, when a defendant has a Guidelines range below the mandatory minimum before applying U.S.S.G. § 5G1.1(b), the Guidelines sentence becomes the statutory mandatory minimum. See U.S.S.G. § 5G1.1(b)("Where a statutorily required minimum sentence is greater than the maximum of the ...