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United States v. Bland

April 3, 2008

UNITED STATES OF AMERICA,
v.
WILLIE BLAND, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On April 21, 2006, pursuant to an Agreement between the parties, Defendant entered a plea of guilty to Counts 1 and 3 of the Indictment, charging him, respectively, with the felony offenses of conspiracy to distribute and possess with intent to distribute more than five grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). At the sentencing, the Court found that Defendant's total offense level was 23 and his criminal history category was III, resulting in a presumptive United States Guidelines range of 57 to 81 months incarceration. However, Defendant was subject to a mandatory minimum sentence of 60 months on Count 1 and 60 months on Count 3, consecutive to Count 1. The Government moved for a downward departure pursuant to 18 U.S.C. § 3553(e) and United States Sentencing Guidelines ("U.S.S.G.") § 5K1.1 based on Defendant's substantial assistance. The Court granted the motion and, on October 17, 2006, sentenced Defendant to 31 months incarceration on each count, the sentences to run consecutively to one another, for a total term of imprisonment of 62 months.

Currently before the Court is Defendant's motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and 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). The Government opposes the motion on the grounds that Defendant is not eligible for a reduced sentence (1) because his guidelines imprisonment range was set by the statutory minimum penalty, which Amendment 706 did not change and (2) because his guidelines sentence imprisonment range was the result of a sentence for two drugs -- cocaine base (crack) and powder cocaine -- and, under Amendment 706, his guidelines sentence is the same as it was prior to the application of Amendment 706.

II. DISCUSSION

The statute that provides authority for a court to resentence a defendant under these circumstances is 18 U.S.C. § 3582(c)(2), which provides that in 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 that the Sentencing Commission issued is U.S.S.G. § 1B1.10, "Reduction in Term of Imprisonment as a Result of Amendment Guideline Range (Policy Statement)," which provides in pertinent part as follows:

(a) Authority. --* * * * * * * * * *

(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).

In a case such as this one, where the statutorily required minimum sentence is greater than the bottom of the applicable guidelines range, U.S.S.G. ยง 5G1.1(c) provides that the court may impose a "sentence . . . at any point within the applicable guideline range, provided that the sentence -- (1) is not greater than the statutorily authorized maximum sentence, and (2)is not ...


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