Opinion
20-cr-00484-JSW-1
04-15-2024
UNITED STATES OF AMERICA, Plaintiff, v. MARTARICE LOVET HUMPHREY, Defendant.
ORDER DENYING MOTION TO REDUCE SENTENCE
Re: Dkt. No. 59
JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE.
Now before the Court is Defendant's motion to reduce his sentence pursuant to 18 U.S.C. section 3582(c) and Part A of Amendment 821 to the United States Sentencing Guidelines (the “Guidelines”), which the Sentencing Commission has determined applies retroactively. Defendant filed his motion pro se. The Federal Public Defender has filed a statement that it does not intend to assume representation but otherwise takes no position on the motion. (Dkt. No. 60.) Having reviewed the motion, the Court concludes a response from the Government is not required. The Court hereby DENIES the motion.
BACKGROUND
Defendant pleaded guilty to being a felon in possession of ammunition in violation of 18 U.S.C. section 922(g)(1). The Probation Office assigned Defendant a base criminal history score of nine. Because Defendant committed his offense while under a criminal justice sentence, two additional points were added. With a criminal history score of 11, Defendant's criminal history category was V. The Court adopted the PO's presentence investigation report without change. (Dkt. No. 30.)
The Guidelines provided for a sentence of 120 months of custody followed by one to three years of supervised release and a fine between $25,000 and $250,000. On May 12, 2021, this Court sentenced Defendant to a below-Guidelines sentence of 70 months in custody of the United States Bureau of Prisons and three years of subsequent supervised release, with no fine imposed. (Dkt. No. 29.)
ANALYSIS
Section 3582(c)(2) permits the Court to reduce a sentence “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, . . . after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
Guidelines section 1B1.10(a)(2) provides that “[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3852(c)(2) if-- (B) An amendment listed in subsection (d) does not have the effect of lowering the defendant's applicable guideline range.”
Section (b)(2)(A) provides that, except for cases involving substantial assistance to the Government, “the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined” by applying the amended guidelines. U.S.S.G. § 1B1.10(b)(2)(A); see U.S.S.G. 1B1.10, Commentary on Application of Subsection (b)(2) (providing examples).
Amendment 821 made changes to status points that can affect a defendant's criminal history category and is listed in section 1B1.10(d). Prior to Amendment 821, two criminal history points were added under Guidelines section 4A1.1 if the defendant committed the offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(e). The revised guideline assigns one criminal history point to an offender with seven or more criminal history points under Guidelines section 4A1.1(a) through (d) if the instant offense was committed while under a criminal justice sentence. Id. For offenders with six or fewer criminal history points, no points are added if the crime was committed while under a criminal justice sentence. Id.
Defendant asserts that he was improperly scored with one point for a misdemeanor traffic violation committed in Contra Costa County, and, combined with a one-point reduction from Amendment 821, his new criminal history score would put him in category IV, with a new Guideline range of 100-125 months. (Mot. at 5.)
Assuming, for argument's sake, that Defendant's calculations are correct, the new Guideline range remains higher than Defendant's sentence. A reduction below 70 months would thus be inconsistent with the policy in U.S.S.G. section 1B1.10(b)(2) and unauthorized under 18 U.S.C. section 3852(c)(2).
However, Defendant is incorrect that he was improperly assessed one criminal history point for a misdemeanor traffic violation. Defendant was sentenced to two years of probation for violation of California Vehicle Code section 23,103.5 for driving recklessly and while intoxicated. Careless or reckless driving offenses receive one criminal history point if they are accompanied by a sentence of a term of probation for more than one year or imprisonment of at least thirty days. U.S.S.G. § 4A1.2(c).
Accordingly, subtracting one criminal history point post-Amendment 821 puts Defendant at 10 criminal history points, which is in Category V-the same category in which Defendant was originally sentenced. Because Amendment 821 does not lower Defendant's applicable Guidelines range, he is not eligible for a sentence reduction.
CONCLUSION
For the foregoing reasons, Defendant's motion for a sentence reduction is DENIED.
IT IS SO ORDERED.