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United States of America v. Anthony Swint

January 4, 2012

UNITED STATES OF AMERICA, APPELLANT,
v.
ANTHONY SWINT, AKA KB, DEFENDANT-APPELLEE, TYRICE WHITE, AKA EARS, DEFENDANT.



Appeal from the United States District Court for the District of Connecticut (Underhill, J.).

11-66-cr

USA v. Swint

AMENDED SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York, on the 4th day of January, two thousand twelve.

Present: GUIDO CALABRESI ROBERT A. KATZMANN, BARRINGTON D. PARKER, Circuit Judges,

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

The United States appeals from a November 29, 2010 order of the United States District Court for the District of Connecticut (Underhill, J.) sua sponte reducing Defendant-Appellee Anthony Swint's term of incarceration from 132 months to 105 months under 18 U.S.C. § 3582(c)(2) based on retroactive amendments to the United States Sentencing Guidelines (the "Guidelines"), as well as the district court's December 6, 2010 order denying the government's motion for reconsideration. We assume the parties' familiarity with the underlying facts and procedural history of this case.

Title 18, section 3582 of the United States Code permits resentencing "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." 18 U.S.C. § 3582(c)(2); see also Dillon v. United States, 130 S. Ct. 2683, 2687 (2010) (noting that the statute authorizes a limited adjustment to an otherwise final sentence). In 2007, the Sentencing Commission implemented Amendment 706 to the Guidelines, which reduced by two levels the base offense level associated with each quantity of crack cocaine. See U.S.S.G. Supp. App. C, amend. 706 (effective Nov. 1, 2007) and amend. 713 (declaring Amendment 706 retroactive). A plurality of the Supreme Court explained the rationale for Amendment 706 as follows:

The Commission amended the crack-cocaine Guidelines to effect a "partial remedy" for the "urgent and compelling" problem of crack-cocaine sentences, which, the Commission concluded, "significantly undermines the various congressional objectives set forth in the Sentencing Reform Act." The Commission determined that those Guidelines were flawed, and therefore that sentences that relied on them ought to be reexamined.

Freeman v. United States, 131 S. Ct. 2685, 2694 (2011) (plurality opinion) (quoting United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, pp. 8-10 (May 2007)).

"The determination of whether an original sentence was 'based on a sentencing range that was subsequently lowered by the Sentencing Commission,' 18 U.S.C. § 3582(c)(2), is a matter of statutory interpretation and is thus reviewed de novo." United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009).

We have had a number of occasions in recent years to address a defendant's eligibility for a sentencing reduction under Amendment 706 where, as here, the defendant was designated as a "career offender" under U.S.S.G. § 4B1.1, and therefore subject in the first instance to separate career offender guidelines, which were unaffected by that amendment. Most notably, in United States v. McGee, 553 F.3d 225 (2d Cir. 2009) (per curiam), we held that "a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by § 2D1.1 of the Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments." Id. at 230. In McGee, the sentencing court made clear at the original sentencing hearing that it had departed downwards from the career offender guideline range "to the level that the defendant would have been" if he had not been designated a career offender based on its conclusion that the defendant's criminal history was insufficiently extensive to warrant that designation. Id. at 227.

In the circumstances of this case, it is clear that the district court's sentence was "based on" the crack cocaine guidelines and not the career offender guidelines. While the district court did not explicitly so indicate during Swint's original sentencing hearing, it subsequently clarified in its November 29, 2010 order that its "original sentence was a departure to a level actually based on the crack cocaine guidelines." J.A. 37. In denying the ...


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