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United States of America v. Dakota Beverly

August 28, 2012


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:


On April 16, 2007, pursuant to a cooperation agreement with the government, defendant Dakota Beverly ("Defendant") pled guilty to Count One, conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base ("crack cocaine") in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii), and Count Nineteen, possession of a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(ii), of a Third Superseding Indictment.

At the sentencing hearing held on April 15, 2009, the court determined, and the parties agreed, that Defendant was accountable for distributing at least 1.5 kilograms crack cocaine, which then corresponded with a base offense level of 36 under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2D1.1(c)(2).*fn1 (Presentence Investigation Report ("PSR") ¶¶ 20, 102.) Defendant received a three-point offense level reduction for his timely acceptance of responsibility, yielding a total offense level of 33. (See Aff. of Joyce C. London, Dkt. Entry 652 ("London Aff."), ¶ 4; PSR ¶ 146.) With Defendant's Criminal History Category of III , the applicable U.S.S.G. range on Count One was 168 to 210 months ' imprisonment, with a mandatory minimum sentence of ten years' imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). (See PSR ¶¶ 157-58.)

The government moved for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) because of Defendant's substantial assistance to the government. (See Letter from Gov't, Dkt. Entry 282.) The court granted the government's motion and sentenced Defendant to 60 months' imprisonment on Count One and five years of supervised release with conditions. (See Judgment, Dkt. Entry 442.) The court also sentenced Defendant to 30 months' imprisonment and five years of supervised release for Count Nineteen, to run consecutively with Defendant's Count One sentence, for a total of 90 months' imprisonment. The supervised release terms were to run concurrently with each other. In addition, the court ordered that Defendant's sentences for Count One and Count Nineteen run concurrently with the undischarged portion of a previously imposed state sentence. (See id.) Because Defendant does not seek a reduction in his sentence for Count Nineteen, and the applicable Guidelines amendments do not apply to this count, it is not discussed further herein.

On January 23, 2012, Defendant filed the instant motion requesting a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). (See Notice of Mot., Dkt. Entry 651.) On February 17, 2012, Defendant moved to expedite a decision on his motion for a sentence reduction. (See Mot. to Expedite, Dkt. Entry 662.) For the reasons set forth below, the motion for a sentence reduction is denied, and the motion to expedite is denied as moot.


On August 3, 2010, the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-222, 124 Stat. 2372 (2010), went into effect increasing the amount of crack cocaine required to trigger mandatory minimum sentences and directing the United States Sentencing Commission to implement comparable changes in the U.S.S.G. See also U.S.S.G. App. C Amendment 750 (Nov. 1, 2011). As relevant here, the U.S.S.G. now provides for a base offense level of 34 where a defendant is responsible for between 850 grams and 2.8 kilograms of crack cocaine. See U.S.S.G. §§ 2D1.1(c)(3). As the parties agree, the amended crack cocaine guidelines are "covered amendments" under U.S.S.G. § 1B1.10(c) that can be applied retroactively and used to reduce a defendant's sentence. See U.S.S.G. § 1B1.10(c) (listing Amendment 750 as a covered amendment).

Pursuant to 18 U.S.C. § 3582(c)(2), a court may modify a term of imprisonment: 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 . . . 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.

Accordingly, "[a] court must first determine that a reduction is consistent with [U.S.S.G.] § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). U.S.S.G. § 1B1.10(a)(1) directs that "any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement." U.S.S.G. § 1B1.10, application note 1, subsection (B)(ii)-(iii) provides that, in considering any sentence reduction, the court "shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment" and "may consider post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment."

Similarly, Section 3553(a) states that a court "shall impose a sentence sufficient, but not greater than necessary" to fulfill certain penological purposes, such as: the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2). A court must also consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; . . . (3) the kinds of sentences available; (4) [the sentencing range established by the Sentencing Guidelines]; (5) [any pertinent Sentencing Guidelines policy statement]; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

Additionally, while the court typically cannot reduce a sentence to below the amended Guidelines range, where, as here, the original sentence imposed was less than the original Guidelines range because of a defendant's substantial assistance to the government, "a reduction comparably less than the amended guideline range . . . may be appropriate." See U.S.S.G. § 1B1.10(b)(2)(B). The application notes to U.S.S.G. § 1B1.10 explain that, for example: if the term of imprisonment imposed in the example provided above was 56 months pursuant to a government motion to reflect the defendant's substantial assistance to authorities (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), a reduction to a term of ...

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