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). As the language of the statute indicates, the question of whether to grant a sentencing reduction lies in the discretion of the sentencing court. Connell v. United States, 960 F.2d 191, 197 (1st Cir. 1992) ("while [defendant] is not entitled to a reduction in the offense level -- section 1B1.10(a) does not mandate the use of the lesser enhancement, but merely affords the sentencing court discretion to utilize it -- he is entitled to have his sentence reviewed in light of the amendment."); United States v. Wales, 977 F.2d 1323, 1992 U.S. App. LEXIS 26655, *10 (9th Cir. 1992) (same). Accordingly, this court on its own motion now considers the factors set forth in this statute to decide whether to grant petitioner's request for a sentencing adjustment.
Although several courts have remanded for this consideration, no case discusses the reasons for the specific change. Therefore, this court looks to the Sentencing Commission policy statements that accompany Amendment 379. Petitioner claims that these statements disapprove of the "double points" that the former guideline subsections (b)(1) and (a)(1)(C) applied to her offense. Although such disapproval is not stated explicitly, the newly drafted provisions alter the Guidelines significantly and clarify what behavior should be considered as relevant to sentencing. An examination of these provisions demonstrates that a reduction in petitioner's sentence would not conflict with statements of the Sentencing Commission. See 18 U.S.C. § 3582(c)(2)
The commentary in effect when petitioner was sentenced explained the two relevant Guideline subsections as follows:
Subsection (a)(1)(C) applies where a reasonable person would have believed from the circumstances that the funds were criminally derived property. Subsection (b)(1) applies if the defendant knew or believed the funds were criminally derived property. Subsection (b)(1) applies in addition to, and not in lieu of, subsection (a)(1)(C). Where subsection (b)(1) applies, subsection (a)(1)(C) also will apply. It is possible that a defendant "believed" or "reasonably should have believed" that the funds were criminally derived property even if, in fact, the funds were not so derived (e.g. in a "sting" operation where the defendant is told the funds were derived from the unlawful sale of controlled substances).
The policy statement accompanying Amendment 379 explains:
This amendment clarifies the scope of the specific offense characteristics in § 2S1.3 and modifies (b)(1) so that it does not produce a result that exceeds the comparable offense level under § 2S1.2. In addition, this amendment creates an additional offense guideline (§ 2S1.4) for offenses involving Currency and Monetary Instrument Reports (CMIR). . . . Such criminal conduct is sufficiently different from the other offenses covered by § 2S1.3 to merit treatment in a separate guideline.
And the new statute § 2S1.4 contains no relevant commentary but rather than distinguishing between levels of knowledge, it examines whether the defendant knew that the funds were derived criminally or were to be used for criminal activity.
Pursuant to Section 3582's directive, this court has examined the other factors set forth in Section 3553(a) to the extent that they are applicable. Although petitioner is charged with an offense involving an enormous sum of money, that aspect of her crime is taken into account in both the revised and the former guideline provision. What now differs is the treatment given her knowledge. While petitioner was sentenced approximately three months before the guideline took effect, the policy statements discussed above show a concern for consistency that is now manifested in the new provision. Furthermore, as mentioned above, this amendment is specifically designated as one subject to retroactive application. As this court finds the new guideline provision to impose a clearer and more sensible standard and as petitioner was sentenced shortly before the revision and has no criminal record, this court hereby grants her motion. Accordingly, petitioner's sentence is reduced to 41 months.
Dated: Brooklyn, New York
November 4, 1992
I. LEO GLASSER, U.S.D.J.
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