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UNITED STATES v. HOLLENBECK

June 24, 1996

UNITED STATES OF AMERICA
v.
JEFFREY P. HOLLENBECK, Defendant.



The opinion of the court was delivered by: MUNSON

 Presently before the court is defendant's second pro se motion to reduce his sentence of incarceration. The first motion was predicated on the retroactive amendment by the United States Sentencing Commission of the guideline method for measuring the metric quantity of marihuana yielded by a marihuana plant. Memorandum-Decision & Order ("MDO"), Document ("Doc.") 21. *fn1" Familiarity with that motion and the decision therein is assumed. The instant motion has been decided on submission.

 I. BACKGROUND

 On May 3, 1995 defendant pled guilty to one count of violating 21 U.S.C. § 841(a)(1) by manufacturing and possessing with the intent to manufacture 99 marihuana plants. On August 2, 1995 defendant was sentenced to 46 months imprisonment. Judgment, Doc. 16. That sentence was commenced on August 30. On November 1, 1995, the retroactive amendments to the marihuana sentencing guidelines went into effect.

 On December 6, 1995 defendant moved pursuant to 18 U.S.C. § 3582(c)(2) for modification of his sentence. Def.'s Mot., Doc. 18. This court granted the motion on February 2, 1996. MDO, Doc. 21. After making the necessary calculations, the court determined that the new range recommended by the sentencing guidelines was 15 to 21 months. Id. at 6.

 Defendant was originally sentenced to the bottom of the applicable guideline range, and the court recommended him for the Bureau of prisons Comprehensive Residential Drug Treatment Program ("Program"). Judgment, Doc. 16. The court was therefore initially inclined to resentence defendant to the bottom of the new range: "Because the court originally committed defendant to the low end of the applicable range . . . it may seem appropriate to resentence defendant to the new bottom end of 15 months." Id. at 6-7. However, concern arose that if defendant's sentence was reduced to 15 months, he might be unable to enroll in and complete the Program in the time remaining him. In January of 1996, the United States Probation Office, on behalf of the court, directed this question to the Bureau of Prisons. The Bureau responded that in order for defendant to undergo the Program, he would have to be resentenced to the top end of the new range, 21 months. Id. at 7.

 Rehabilitative interests persuaded the court to reduce the term of incarceration from 46 to 21 months to facilitate defendant's completion of the Program:

 
The defendant himself has stated that the crime he is currently incarcerated for resulted from his own drug habit. Presentence Investigation Report at 4, P 10. Defendant admits "his drug addiction cost him a great deal in his personal life." Id. The court agrees that defendant's substance abuse history is significant. At one time or another, defendant has abused alcohol, marihuana, cocaine, heroin, amphetamines, and barbiturates. Id. at 8, P 33.

 MDO, Doc. 21, at 7.

 Given defendant's history, the court decided that "resentencing defendant to a reduced prison term that still permits him to undergo the Drug Treatment Program satisfies both the need to protect society from defendant's future crimes, 18 U.S.C. § 3553(a)(2)(C), and the need to rehabilitate him, id. § 3553(a)(2)(D)." MDO, Doc. 21, at 7. The Comprehensive Residential Drug Treatment Program is a substantial 500-hour course of treatment which the court felt could have a very significant effect upon defendant's behavior, and consequently upon his future risk of recidivism. For these reasons and others more fully explained in the prior opinion in this matter, this court -- in reliance upon the Bureau's assurance that 21 months was sufficient -- reduced defendant's sentence from 46 to 21 months. Id. at 9.

 On March 2, 1996, one month after the entry of the court's decision, defendant submitted a written request to a staff member at the Federal Correctional Institution in Morgantown, West Virginia seeking entry into the Program. Ex. I att'd to Def.'s Mot., Doc. 23. Surprisingly, he was told that he did "not have enough time to take the Residential Drug Program." Id. A similar inquiry produced the same answer. Ex. II att'd to Def.'s Mot., Doc. 23. Defendant was enrolled in a more modest 40-hour program which he has already completed.

 Defendant petitioned the court for another reduction of sentence on March 25, 1996. Def.'s Mot., Doc. 23. Defendant argues that because the court would have resentenced him to 15 months but for the desirability of allocating sufficient time to complete the Program, he should be resentenced again -- this time to the bottom of the range. Id. at 2-3.

 II. DISCUSSION

 The government was invited to respond on an expedited basis. The United States opposes any further reduction. They repeat arguments made in their opposition to defendant's first motion for reduction of sentence. Compare U.S. Mem. Law in Opp'n, Doc. 19 with Letter from Grant C. Jaquith, Doc. 25. To these objections, the court proffers the same answers it set forth in its prior decision, summarized in the margin. *fn2" The government also contends that there is no ...


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