The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Defendant Felix Flores applies for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) in connection with the announcement by the United States Sentencing Commission ("the Commission") that its reduction of the recommended guideline sentences in cases involving distribution of crack cocaine, see Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28572 (2007), is to be applied retroactively, see Sentencing Guidelines for the United States Courts, 73 Fed. Reg. 217-220 (2007). The motion will be granted, and defendant's sentence reduced to 121 months, the maximum reduction permitted by the Commission's policy statement and a sentence minimally in excess of the statutory mandatory minimum sentence of 120 months applicable to his crime of conviction. See 21 U.S.C. § 841(b)(1)(A).
At the time of defendant's original sentencing, the Probation Department calculated the applicable guideline range to be 168 to 210 months, based on an offense level of 33 and a criminal history category III. (PSR ¶ 70.) However, at sentencing, the Court concluded that category III overstated defendant's criminal history, and that criminal history category II more accurately reflected defendant's danger to the community and likelihood of recidivism. See U.S.S.G. § 4A1.3. (Sentencing Tr. at 16-19.) The guideline range for offense level 33 and criminal history category II is 151 to 210 months, and the Court accordingly departed downward and sentenced defendant to 151 months. (Id. at 20.)*fn1
Defendant asks that his sentence be reduced to 121 months. By letter dated July 11, 2008, the Government states that it does not oppose reduction of his sentence to a term of imprisonment of 124 months, representing a ten percent departure from the original guideline range, but argues that a reduction below 124 months is not authorized. The Government's interpretation of the relevant provisions of law is unduly constricted.
Under 18 U.S.C. § 3582(c)(2), a defendant's sentence may only be reduced when "such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." The Sentencing Commission has authorized reductions when the guideline range applicable to a defendant has been reduced, and the reduction rendered retroactive by the Commission. U.S.S.G. § 1B1.10(a). But even in this situation, unlimited reductions in sentence are not permitted; the intent of the rule is to permit a reduction to the sentence that would have been imposed had the new guideline been in effect at the time of the original sentencing. Accordingly, in most cases, "the court shall not reduce the defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range determined" under the newly amended guideline. U.S.S.G. § 1B1.10(b)(2)(A).
That general formulation, however, would not benefit defendants whose original sentence represented a downward departure from the guideline sentence. To take account of such cases while still adhering to the principle that judges may not reduce sentences below what the defendant would have received had the amended guideline been in effect all along, § 1B1.10(b)(2)(B) provides that where "the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing," the defendant may be eligible for "a reduction comparably less than the amended guideline range." (Emphasis added.)
The Government interprets this language to authorize a reduction from the amended guideline range that is no larger in percentage than the reduction from the initial pre-departure guideline range. The Government correctly calculates Flores's amended offense level to be 31, which with a criminal history category III results in an amended guideline range of 135 to 168 months. It then argues that defendant is entitled to no more than a ten percent reduction from the bottom of the amended guideline range, based on the fact that defendant's initial sentence of 151 months was approximately ten percent less than the 168 months that constituted the bottom of defendant's original pre-departure guideline range. The Government essentially argues that percentage-based reductions are the only type of "comparabl[e]" reduction allowed by § 1B1.10.
The application notes to § 1B1.10 adopt the percentage method as one "example" of a "comparabl[e]" reduction:
For example, in a case in which: (A) The guideline range applicable to the defendant at the time of sentencing was 70 to 87 months; (B) the defendant's original term of imprisonment imposed was 56 months (representing a downward departure of 20 percent below the minimum term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing); and (C) the amended guideline range determined under subsection (b)(1) is 57 to 71 months, a reduction to a term of imprisonment of 46 months (representing a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1)) would amount to a comparable reduction and may be appropriate.
U.S.S.G. § 1B1.10, Application Note 3. To be sure, the percentage reduction is the only "example" the notes discuss, and, unsurprisingly, numerous courts have explicitly applied percentage-based reductions in sentences. See United States v. Patrick, No. 05 Cr. 119, 2008 WL 2115661, at *3 (E.D. Tenn. May 19, 2008) (28% reduction); United States v. Green, No. 99 Cr. 57, 2008 WL 1757787, at *1 n.1 (S.D. W.Va. April 16, 2008) (50%); United States v. Caldwell, No. 02 Cr. 26, 2008 WL 1443290, at *1 (S.D. W.Va. April 9, 2008) (42.8%); United States v. Nunez, No. 02 Cr. 1327, 2008 WL 974652, at *2 (E.D.N.Y. April 8, 2008) (28%); United States v. Miller, No. 01 Cr. 118, 2008 WL 782566, at *2 (E.D. Tenn. March 21, 2008) (calculating but not awarding defendant full 35% reduction); United States v. Caldwell, No. 02 Cr. 26, 2008 WL 583046, at *1 (S.D. W.Va. Feb. 29, 2008) (42.8%); see also United States v. Donaldson, No. 00 Cr. 37, 2008 WL 818609, at *2 (M.D. Fla. March 25, 2008) (reducing sentence by 46% without explicitly noting that the reduction was percentage-based).
The Note, however, says only that a percentage reduction calculated in this manner "would amount to a comparable reduction." It conspicuously does not say that only reductions thus calculated are comparable within the meaning of § 1B1.10(b)(2)(B), nor does it suggest that other ways of calculating a reduction would not be appropriate. The text of § 1B1.10(b)(2)(B) permits any reduction resulting in a sentence that is "comparably less" than the guideline sentence, meaning a sentence that is below the revised guideline to a degree comparable to the extent to which the original sentence was below the originally applicable guideline. Numerous courts have based their "comparable" reductions not on a given number of months, but on guideline levels or categories. See United States v. Bradley, No. 03 Cr. 65, 2008 WL 2097570, at *1 (S.D. Ind. April 4, 2008) (noting that "[a] sentence three levels below the amended guideline range would be a 'comparable reduction' under section 3582(c)(2) and Application Note 3," because defendant had been given a three-level departure on the basis of his substantial assistance); United States v. Nunn, No. 98 Cr. 2, 2008 WL 2098034, at *2 (S.D. Ind. April 4, 2008) (noting that "a comparable reduction would be . . . two levels below the amended guideline range" where defendant had initially been given a two-level departure on the basis of his substantial assistance); see also United States v. Tynes, 546 F. Supp. 2d 319, 327 n.7 (E.D. Va. 2008) (raising but not deciding whether to reduce a defendant's sentence by a fixed quantity of 5 months rather than by ten percent); cf. United States v. Campbell, No. 03 Cr. 74, 2008 WL 974743, at *1 (E.D. Tenn. April 8, 2008) (noting, after defendant was initially sentenced based on a three-level downward departure, that reducing sentence to 63 months, constituting a 28% comparative reduction, was the "maximum reduction authorized by § 1B1.10(b)(2)" where both the bottom of the amended guideline range incorporating the initial three-level downward departure and the new two-level reduction due to retroactive crack amendments was 63 months).
No appellate courts appear to have addressed the issue, but the Eleventh Circuit appears to have assumed that a reduction in sentence calculated by levels rather than percentages was appropriate in deciding United States v. Vautier, 144 F.3d 756, 761 (11th Cir. 1998). At the original sentencing in that case, the district court found the defendant responsible for 465 marijuana plants, but ultimately departed downward eight levels on the Government's 5K1.1 motion for substantial assistance. Id. at 758. Two years later, the Sentencing Commission reduced the weight equivalent per marijuana plant from 1,000 grams to 100 grams of marijuana, and made that amendment retroactive. Id. When the district court denied defendant's motion for a reduction in sentence, defendant appealed, arguing, among other things, that the court was obliged to re-apply the downward departure to the newly reduced guideline calculation. The Eleventh Circuit rejected defendant's argument, stating that a "district court, ruling on a defendant's § 3582(c)(2) motion, has the discretion to decide whether to re-apply a downward departure for substantial assistance when considering what sentence the court would have imposed under the amended guideline." Id. at 761. However, Vautier did not blink at defendant's assumption that the appropriate potential reduction should have been calculated according to levels, or suggest that only departures calculated on a percentage basis was appropriate.*fn2
There is no a priori reason why the "comparability" of a departure should be judged by a percentage rather than by an absolute number of months or a number of levels or categories. The Sentencing Commission could have specified that in the case of a departure, only an identical departure, calculated in a particular manner, would be permitted. The very notion of a "comparable" reduction implies a degree of flexibility -- a range of reductions, and not merely a single value, could fairly be considered "comparably" less than the guideline sentence. In particular, it is difficult to see how a sentence that is calculated in the same way as the original sentence, and that applies the same methodology to reduce the guideline sentence, could be found not to be "comparably" less than the revised guideline.
The Government's interpretation appears especially arbitrary in this case. Flores was originally sentenced under a mandatory guideline system. Under the prevailing understanding of the law at that time, the Court was permitted to depart only under narrow circumstances. Flores was granted a departure based on a specific guideline provision that recognizes that the Guidelines' criminal history category calculations are imprecise. See U.S.S.G. § 4A1.3 (Background) ("This policy statement recognizes that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur."). In sentencing Flores, the Court specifically determined that Flores's history was more comparable to the typical category II offender than to the typical category III offender, and proceeded to sentence him at the bottom of the range provided for offenders with his offense level in that category. The sentence was driven by the logic of the guideline. Because this Court, like the courts in Bradley and Nunn, based its initial departure not on percentages or absolute numbers of months, but on categories or levels, an appropriately comparable departure for Flores is one that adjusts his sentence to one within the range of 121 to 151 months dictated by his amended offense level of 31 and criminal history category II. Not only is such a sentence one that is "comparable" to his original sentence, but it would in fact ...