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United States v. Bethea

United States Court of Appeals, Second Circuit

October 31, 2013

UNITED STATES of America, Appellee,
v.
Mical BETHEA, aka Kareem, Defendant-Appellant.

Argued: Oct. 17, 2013.

Page 87

Michael L. Moscowitz, New Haven, CT, for Defendant-Appellant.

Christopher M. Mattei (Sandra S. Glover, on the brief) for Deirdre M. Daly, Acting United States Attorney for the District of Connecticut, for Appellee.

Before: WINTER, JACOBS and STRAUB, Circuit Judges.

PER CURIAM:

This appeal from the denial of a motion for sentencing modification in the United States District Court for the District of Connecticut (Bryant, J.) presents an issue as to what procedure a district court should follow under 18 U.S.C. § 3582(c).

Bethea pled guilty in June 2010 to a single count of cocaine distribution. The Presentence Report (" PSR" ) calculated a guidelines range of 60-71 months. At sentencing, in September 2010, Judge Bryant extensively reviewed the sentencing factors and imposed an above-guidelines sentence of 80 months' imprisonment, citing Bethea's additional sales of firearms; his extensive criminal history and risk of recidivism; the need for general deterrence; and the danger Bethea posed to the public. Bethea did not appeal his sentence.

In September 2011, Bethea filed an 18 U.S.C. § 3582(c) motion for sentence modification based on retroactive amendments to the crack cocaine sentencing guidelines. An addendum to the PSR calculated a revised guidelines sentence of 60 months' imprisonment by reason of a five-year mandatory minimum in Bethea's case.

In March 2012, the court denied Bethea's motion and Bethea appealed.

I

When presented with a motion to reduce a sentence pursuant to § 3582(c)(2), a district court must engage in a " two-step approach." Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010). At step one, the court " must consider whether the defendant is eligible for a reduction by calculating the Guidelines range that would have been applicable had the amended Guidelines been in place at the time the defendant originally was sentenced." United States v. Wilson, 716 F.3d 50, 52 (2d Cir.2013). " At step two ..., § 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction ... is warranted in whole or in part under the particular circumstances of the case." Dillon, 130 S.Ct. at 2692.

The district court disposed of Bethea's motion by stating:

The court sentenced defendant to a non-guidelines sentence predicated on the agreement between the parties that the calculated ...

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