Opinion
CR-1-92-128.
November 30, 2009
This matter is before the Court upon defendant's Motion for Reduction of Sentence Pursuant to 18 U.S.C. Section 3582(c)(2) (doc. no. 64), Response by the United States (doc. no. 67), and Defendant's Motion for Reduction (doc. no. 69). A Hearing was held on November 18, 2009.
On November 18, 1992, defendant was charged in a six-count Indictment. Count Two was dismissed by the government. In Count One, he was charged with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base. In Counts Three, Four, and Five, he was charged with Money Laundering. In Count Six, he was charged with possession with intent to distribute cocaine base.
A trial resulted in verdicts of guilty on all counts on March 4, 1993 (doc. no. 25). The Court sentenced the defendant on August 13, 1993 (doc. no. 34). A Notice of Appeal was filed on the same day (doc. no. 35). The United States Court of Appeals for the Sixth Circuit affirmed the convictions and sentence (doc. no. 47). Defendant filed a Motion pursuant to § 2255 on April 28, 1997 (doc. no. 50) which was denied on March 3, 1999 (doc. no. 62). Defendant did not appeal this decision.
The defendant was sentenced to 360 months on each of Counts 1 and 6, and 240 months on each of Counts 3, 4, and 5, all sentences to run concurrently. At sentencing, the Court addressed the objections to the presentence report. The Court did not adopt the recommended sentencing range in the presentence report, rejecting the recommended 2-level enhancement for role in the offense. The Court found the defendant's offense level was 34, based upon its finding that defendant was responsible for 12 ounces of cocaine base (crack), 12 kilos of cocaine, 56.7 grams of cocaine and 425.2 grams of cocaine (converting $19,550 into equivalent amounts of cocaine). The Court noted that the 12 ounces of crack cocaine alone was sufficient to justify a level 34. The defendant received a 2-point enhancement for the gun which was present during the offense, for a total offense level of 36. The Court found that the defendant's criminal history category was a VI, despite his objection that a level VI overrepresented his criminal history category. His sentencing range was 324 to 405 months.
In Mr. Lancaster's Motion for Retroactive Application of the Sentencing Guidelines (doc. no. 64), he asks for a sentence in the range of 262 to 327 months or 20 years, which he argues is sufficient, but not greater than necessary to satisfy the purposes of sentencing under 18 U.S.C. § 3553(a). Under the Amendment, he admits the proper reduced offense level is 34, resulting in the 262 to 327 range, but argues that the disparity remains great and asks for a sentence below the amended range. Defendant argues the Court has the authority to reduce his sentence below the amended sentencing range based on Booker v. United States, 543 U.S. 220 (2000).
The Court appointed an attorney to assist him and referred the motion to the United States Probation Department for analysis and recommendation. In its Post-Sentencing Addendum, the Probation Officer determines that defendant is eligible for application of the new cocaine base guideline because his guideline imprisonment range is subject to a reduction of two levels. She also lists his prison infractions.
In its Response (doc. no. 67), the government agrees that he is eligible for the sentence reduction, but argues that the reduction is not warranted because he poses a "serious danger to the community." It argues that Lancaster's extensive criminal history and his conduct while in prison provide persuasive evidence he will have difficulty abiding by society's rules, if released.
In her filing on behalf of Mr. Lancaster, defendant's attorney argues that the purpose of the Amendment is to rectify the disparity between crack and powder cocaine sentences. Additionally, she argues that public safety would not be jeopardized if Lancaster's sentence is adjusted in order to rectify the unjustifiable sentencing disparity between crack and powder cocaine.
Analysis
In 28 U.S.C. § 994(o), Congress mandated that the Sentencing Commission "periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section." In 28 U.S.C. § 994(u), Congress specified that "[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offenses may be reduced."
As a general rule, a district court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see also United States v. Blair, No. 978-1440, 2008 WL 2622962, *1 (E.D.Mich. July 2, 2008). Congress has provided an exception "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." 18 U.S.C. § 3582(c)(2). Under such circumstances, section 3582 provides:
Upon motion of the defendant . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The applicable policy statement, U.S.S.G. § 1B1.10, provides in relevant parts:
§ 1B1.10 Reduction in term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)
(a) Authority. —
(1) In General.-In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
(3) Limitation:-Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.
(b) Determination of Reduction in Term of Imprisonment. —
(1) In General. — In determining whether, and to what extent, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.
It is also stated that "the court shall not reduce defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term less than the minimum of the amended guideline range." U.S.S.G. § 1 B1.10(b)(2)(A). Subsection (c) of the policy statement lists the guideline amendments to be given retroactive effect. U.S.S.G. § 1 B1.10(c). Amendment 706, which is listed, is applicable in defendant's case.
The Commentary to Section 1B 1.10 provides that in determining whether a sentence reduction is warranted, a court must consider "the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment." In addition, a court may consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.
Section 3553(a) states that a court "shall impose a sentence sufficient, but not greater than necessary" to comply with the statute's goals. In making that determination, the court must consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established by the Guidelines; (5) any applicable Guidelines policy statement; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a).
The Court finds the defendant is eligible. He was sentenced under a guideline section which was subsequently lowered. His amended guideline range, based on an amended offense level of 34 and a criminal history category of VI, is 262 to 327. In this case, the Court considers Mr. Lancaster's post-sentencing conduct, but only to the extent that it impacts the Court's analysis of the § 3553(a) factors and the public safety considerations posed by a reduction in Mr. Lancaster's sentence.
Pursuant to Amendment 706 to the Sentencing Guidelines, which became effective November 1, 2007 and retroactive effective March 3, 2008, a two-level reduction from his original offense level results in an appropriate sentence for the amount of drugs for which the defendant was held responsible in this case. In fact, it was determined that this was the level which should have been used to calculate his sentence in 1993. The Court finds that Mr. Lancaster should not be precluded from receiving the benefit of this reduction. The Court determines that the public safety will not be jeopardized if Mr. Lancaster is released with the benefit of the reduction. Mr. Lancaster and the evidence and testimony presented on his behalf succeeded in convincing the Court that he has accepted full responsibility for the offenses of his youth and deserves the reduction in sentence Congress has established. While his purchase of the firearm in connection with the original offense was troubling, he has demonstrated that he does not pose a threat of future criminal activity, particularly involving violence. The Court is convinced that he is not the man who committed the crimes of which he was convicted when he was 23 years old and will not return to the life he led 17 years ago. Particularly illustrative is the positive influence he has had on his children and siblings through the years and the dedication he has shown to them and they to him.
Furthermore, the Court finds that Lancaster was appropriately sanctioned by the prison for his infractions and will, in fact, serve additional time because of those transgressions. The Court accepts defendant's explanations of the facts surrounding them and his representations that he has seen the errors of his ways. Accordingly, the Court establishes the defendant's guideline range at 262 to 327 months, based upon an amended level 34 and a criminal history category of VI.
Pursuant to the record established at the Hearing and all the information available to the Court, a sentence of 291 months is sufficient but not greater than necessary based upon the provisions of 18 U.S.C. § 3553(a). Pursuant to 18 U.S.C. § 3553(a)(1), which includes the nature and circumstances of the offense and the defendant's criminal history, the Court found in its original determination that the defendant should not receive the minimum of the range based upon the seriousness of the offense and his actions. A sentence of 291 months reflects the seriousness of the offense, promotes respect for the law, and provides just punishment, which is consistent with the provisions of 18 U.S.C. § 3553(a)(2). A reduction to 291 months will continue to serve as a deterrence, particularly since the defendant will still serve several years more before release. The Court is convinced that this sentence will protect the community and provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner, as he serves his term of supervised release for a least five years after he is released from the custody of the Bureau of Prisons. As stated in 18 U.S.C. § 3553(a)(3), the available sentences have been considered and a sentence of 291 months is within the scope of the sentences available to the Court. This sentence avoids unwarranted disparities among defendants who commit similar offenses and have similar backgrounds, as mandated by 18 U.S.C. § 3553(a)(4), (5), and (6). Since restitution is not applicable, the provisions of 18 U.S.C. § 3553(a)(7) do not apply.
Defendant asks this Court to reduce his sentence below the amended sentencing range, to 20 years, despite the policy statement's prohibition on sentencing below the amended guideline range. See U.S.S.G. § 1 B1.10(b)(2)(A).
Defendant argues that this Court need not adhere to the policy statement because the Supreme Court in Booker v. United States, 543 U.S. 220 (2005) rendered the sentencing guidelines merely advisory. The United States Court of Appeals for the Sixth Circuit has addressed this issue in United States v. Washington, ___ F.3d ___, 2009 WL 3425689 (C.A. (Tenn.)), where it holds that, pursuant to 18 U.S.C. § 3582(c)(2), a district court is not authorized to reduce a defendant's sentence below the amended Guideline range. In it, the court notes that, with the exception of the Ninth Circuit in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), all appellate courts that have considered whether a court may apply Booker and reduce the sentence of a defendant eligible for a reduction under § 3582(c) to a term of incarceration below the amended guideline range, have held that it may not.
The Washington court observes that, while the "constitutional infirmity that Booker addressed was that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" Booker, 543 U.S. at 227-28 (quoting Apprendi, 530 U.S. at 490), a district court can only decrease a defendant's sentence pursuant to a § 3582(c)(2) modification proceeding. The Washington court discussed the reasoning of the court in United States v. Cunningham, 554 F.3d 703 (7th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 2826 (2009), in which the Seventh Circuit court stated that" the constitutional defect addressed by Booker is simply not implicated." 554 F.3d at 707. Thus, to frame a section 3582(c)(2) reduction as a mandatory undertaking that triggers the Sixth Amendment or Booker is incorrect. Id. The Washington court agreed, stating: Plenary proceedings are governed by 18 U.S.C. § 3553 (as modified by Booker), while motions for sentence reductions are constrained by 18 U.S.C. § 3582(c). Again quoting Cunningham, the Washington court states:
It is true that one of the factors in section 3553(a) is the Guidelines range, which Booker made advisory. However, section 3582(c)(2) states that a district court considers the section 3553(a) factors in making a reduction "consistent with the applicable policy statements issued by the sentencing Commission." There need not be a conflict: the statute can be viewed as requiring district courts to consider the section 3553(a) factors in deciding whether and to what extent to grant a sentence reduction — [because § 3582(c) is a discretionary proceeding in the first instance] — but only within the limits of the applicable policy statements.2009 WL 3425689 at *8 (quoting Cunningham, 554 F.3d at 708).
CONCLUSION
This Court has independently reviewed the information in the record and concludes that the November 1, 2007 crack amendment applies to this case, therefore, Mr. Lancaster's offense level is reduced to 34. His original criminal history category is VI. His new advisory sentencing range is 262 to 327 months.The Court finds that Mr. Lancaster meets the criteria contained in 18 U.S.C. Section 3582(c)(2) and U.S.S.G. Section 1B1.10. The Court is, therefore, authorized to reduce the defendant's term of imprisonment.
Taking into account the advisory Guideline's Policy statements, the amended sentencing range, the relevant sections 3553 and 3582 factors, and the entire record, the Court makes its independent determination that the sentence of 291 months is sufficient but not greater than necessary to comply with the purposes set forth in 18 U.S.C. Sections 3553 and 3582.
The Court GRANTS the Motions to Reduce Mr. Lancaster's sentence of imprisonment to 291 months on Counts One and Six to run concurrently to the 240 months imposed on Counts Three, Four, and Five.