Opinion
Case No.: CR-2-95-044(2).
March 25, 2009
ORDER
This matter is before the Court on Defendant Sherman Giles's Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2) in a Disputed Disposition Case (Doc. 1758). This Motion was filed on October 31, 2008. Defendant is seeking a reduction in the term of imprisonment imposed based on a guideline sentencing range that has subsequently been lowered and made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u). On December 8, 2008, the Government filed is Response in Opposition to Defendant's Motion (Doc. 1760). On March 6, 2009, the Probation Office submitted a Post-Sentencing Addendum to the Presentence Report (Doc. 1765). Defendant's Motion is now ripe for review.
Pursuant to this Court's General Order No. 08-03 filed February 22, 2008, the United States Attorney's office, the Federal Public Defender, and the Probation Department conducted a review of potential defendants who may be eligible for sentence reductions under the retroactivity provision of 18 U.S.C. § 3582(c). Defendant Giles's case has been reviewed and the parties agree that Defendant is technically eligible for a reduction in his sentence under the amended guidelines, however, the Government opposes any reduction on public safety grounds. The Government asserts that Defendant was originally sentenced to 300 months in prison for his role in an extensive drug conspiracy and his utilization of weapons during the course of that offense. The Government argues that the Defendant has been a danger to the community and therefore a reduction in his sentence is not in the public's interest.
The Government further argues that Defendant's conduct in prison has not been without incident. The Probation Officer has summarized that Defendant Giles has been cited with a number of rule violations since his incarceration in 1996 through 2004. These violations include: assaulting without serious injury; using telephone without authorization; possession of intoxicants; possession of a dangerous weapon; refusing to obey an order; being absent from assignment; fighting with another person; possession of unauthorized item; and being insolent to a staff member. The Probation Officer further reports that Defendant has been incident free since 2004, has participated in various educational class, as well as a drug education class.
The Probation Officer recommends that the Court grant Defendant's motion and reduce his offense level by two points which would place reduce his offense level from a 37 to a 35 and with the criminal history category IV, the new range would be 235 to 297 months. The Probation Officer notes that Defendant was 19 years old when he commenced his involvement in this case and that he is now 35 and appears to have made positive accomplishments while incarcerated. The Probation Officer recommends a sentence of 242 months.
Defendant, through counsel, argues that Defendant was already sentenced based on his prior criminal history and to deny him this reduction would be double punishment.
Whether to grant a reduction of sentence pursuant to § 3582(c)(2) is within the discretion of the court. United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997). Although a defendant may qualify for a reduction in sentence, a reduction is not automatic. See United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) ("The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary."). In considering whether a reduced sentence is appropriate, this court must consider the factors in 18 U.S.C. § 3553(a) to the extent that they are applicable. See § 3582(c)(2).
Defendant Giles pled guilty to Count One of the Indictment for conspiracy to possess with the intent to distribute cocaine and more than 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C) and 841(b)(1)(B)(iii). Defendant was sentenced on August 22, 1996. Based on Defendant's total offense level of 37 and criminal history category IV, Defendant was sentenced to 300 months incarceration on Count One.
Upon consideration of Defendant's motion and the statutory sentencing factors set forth in § 3553(a), the Court concludes that a reduction of Defendant's term of incarceration is appropriate in light of the reduction in the applicable guideline range. While the Court shares the Government's concern that Defendant's offense was very serious and his criminal history was significant, he did receive a substantial period of incarceration (300 months) for this charge and the danger he posed to the public.
The Court concludes that a reduced sentence of 264 months is sufficient to reflect the seriousness of the offenses of conviction, to provide just punishment, and to afford adequate deterrence. The Court has further considered the need to protect the public from further crimes of the Defendant as urged by the Government and concludes that even with the reduction in sentence, Defendant will be incarcerated for a very lengthy period of time to protect the public and hopefully rehabilitate Defendant from committing future crimes.
Defendant's previous offense level was a 37 and with a criminal history category IV, the sentencing guideline range was 292 to 327 months. By applying the new cocaine base guideline, Defendant Giles's total offense level would be reduced from a 37 to a 35 and the new guideline range, is 235 to 293 months. While the Court sentenced toward the lower end of the previous range, the Court, taking into account the Government's concern, will sentence in the median of the new range, 264 months. Accordingly, Defendant's sentence of 300 months incarceration previously imposed in this case is hereby reduced to a term of incarceration of 264 months. The Court finds that a 264 month sentence is sufficient, but not greater than necessary, to comply with the purposes of sentencing.
Therefore, Defendant's Motion for Reduction of Sentence is GRANTED. Except as provided above, all other provisions of the judgment previously entered in this case shall remain in effect.
The Clerk shall remove Document 1758 from the Court's pending motions list.