Opinion
CRIMINAL ACTION NO. 6:12-cr-00174-02
12-01-2015
UNITED STATES OF AMERICA, Plaintiff, v. SAMUEL SHAE WHITE, Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is the determination pursuant to 18 U.S.C. § 3582(c)(2) as to whether Defendant is entitled to a sentence reduction based on a subsequent reduction in the applicable sentencing guideline. By its order entered on May 12, 2015, the Court designated Defendant for expedited consideration. The Court notes that Defendant received a downward departure at sentencing pursuant to a motion by the Government pursuant to U.S.S.G. § 5K1.1. (See ECF No. 121.) The Court also notes that the probation officer recommends that Defendant is eligible for a sentence reduction and the Government does not object to this recommendation. (See ECF No. 161.)
However, if the Court finds that Defendant is entitled to a sentence reduction, the Court must then consider the appropriate method to calculate this reduction. "§ 3582(c)(2) and U.S.S.G. § 1B1.10 are narrow provisions that allow a limited reduction of sentence by the amount specified in an amendment, while prohibiting a complete reevaluation." United States v. Dunphy, 551 F.3d 247, 252 (4th Cir. 2009) (citations omitted). "Where a defendant's sentence was within the guideline range applicable at the time of the original sentencing, 18 U.S.C. § 3582(c)(2) precludes a downward departure below the amended guideline range." United States v. Fennell, 592 F.3d 506, 509 (4th Cir. 2010) (citation omitted). "On the other hand, where the original sentence falls below the original guideline range, § 3582(c)(2) does not preclude a downward departure below the amended guideline range." Id. In particular, the Guidelines provide the following statement regarding a departure during resentencing where the defendant received a reduction pursuant to U.S.S.G. § 5K1.1 at the time of sentencing:
If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant's substantial assistance to authorities, a reduction comparably less than the amended guideline range . . . may be appropriate.U.S.S.G. § 1B1.10(b)(2)(B) (2014). To determine what constitutes a reduction that is "comparably less than the amended guideline range," the Court "may use a lower offense category, a percentage, . . . a flat number of months, . . . . or any other reasonable method that results in a comparable reduction." Fennell, 592 F.3d at 509; see also United States v. Woodson, 433 F. App'x 191, 193 (4th Cir. 2011) ("The determination of a 'comparably lower' sentence may be determined by using a lower offense category, a percentage, a flat number of months to calculate the reduction, or any other reasonable method." (citation omitted)).
Based on the Fourth Circuit's decision in Fennell, the Court may use one of the three methods specified by the Fennell court to calculate Defendant's sentence reduction. See Fennell, 592 F.3d at 509. The Court may also employ "any other reasonable method that results in a comparable reduction." Id. Prior to making this determination, the Court finds that it is appropriate to receive input from the Government and counsel for Defendant.
Accordingly, the Court ORDERS that this matter shall now proceed under the Standard Procedure. The Court DIRECTS the Federal Public Defender to undertake the representation of Defendant or seek the appointment of counsel. The Court further ORDERS the United States and Defendant to file written memoranda addressing the proper method to calculate Defendant's sentence reduction no later than 14 days from the date of this Order.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel, the United States Attorney, the United States Probation Office, and the United States Marshal.
ENTER: December 1, 2015
/s/_________
THOMAS E. JOHNSTON
UNITED STATES DISTRICT JUDGE