Opinion
CASE NO. 04-10016-CR-King/Garber.
April 22, 2008
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court by Order of Reference from United States District Judge James Lawrence King. Pursuant to such reference, the Court has received the movant Anthony Harris's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) [DE 46] and the government's response.
DISCUSSION
The movant, upon his plea of guilty to Count I of the indictment charging him with a violation of 21 U.S.C. § 841(a)(1) in that he knowingly and intentionally possessed with the intent to distribute cocaine base, was sentenced to imprisonment for a term of eighty (80) months. He waived his right to a pre-sentence report with the government's concurrence. Said sentence was imposed based upon a sentencing range of 70-87 months, as set forth in the applicable Sentencing Guideline then in effect.
Movant seeks relief based upon his correct assertion that Amendment 706 to the Sentencing Guidelines reduces the applicable guideline in his case. Based upon his determined criminal history category of IV and the present base offense level of 24, pursuant to amended Section 2D1.1, together with other guideline applications used by the court at sentencing, movant's final offense level is now 21. Based upon such determination, the present sentencing range is 57-71 months.
The government has stated, in its response to the movant's Motion, that a two-level reduction in his base offense level is appropriate. The undersigned agrees that such reduction is appropriate by an application of the present guideline standards. However, the Court, notwithstanding any reduction, must still impose a five-year statutory mandatory minimum term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B). Accordingly, even with any reduction granted by the Court the defendant must serve no less than sixty months imprisonment.
CONCLUSION AND RECOMMENDATION
For reasons set forth above and based upon the Court's review of the record, and consideration of the submissions of the parties, the undersigned respectfully
RECOMMENDS that the movant Anthony Harris's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) be GRANTED and that the Court re-sentence the movant within the guideline range of 57-71 months but not less than the mandatory 60 months.
The parties have ten (10) days from the date of this Report and Recommendation within which to file written objections, if any, with United States District Judge James Lawrence King. See 28 U.S.C. § 636 (1991). Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958 (1988).
RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida.