Opinion
CASE NO. 6:99-CR-111-ORL-19A.
January 31, 2008
ORDER
The United States Sentencing Commission has promulgated Amendment 706 lowering the base offense level for cocaine base (crack cocaine) offenses by two levels for eligible defendants sentenced on or after November 1, 2007. The Commission later decided this Amendment should be applied retroactively to Defendants sentenced before November 1, 2007. The Court has undertaken a preliminary review of Defendant's case, in which Defendant was sentenced prior to November 1, 2007. Based on that review, Defendant may be eligible for reduction in Defendant's base offense level. Accordingly, the Court acting on its own motion pursuant to 18 U.S.C. § 3582(c)(2), issues the following Order:
1) The Office of the Federal Public Defender is appointed to represent Defendant for the purpose of seeking a reduction of Defendant's original sentence and shall file a notice of appearance, a notice of conflict, or a notice that Defendant is not eligible for the services of the Public Defender within seven (7) days of this Order. If a notice of conflict is filed, the Court may appoint CJA counsel to represent Defendant. This appointment of counsel does not deprive Defendant of the right to retain private counsel should Defendant have the financial resources to do so.
2) The United States Attorney's Office shall cause a notice of appearance to be entered on behalf of the Government within seven (7) days of this Order.
3) The United States Probation Office shall provide this Court, Defendant's counsel, and Government counsel a supplemental presentence report within fifteen (15) days from the date of this Order, subject to an extension of time by Order of Court upon request by the Probation Office. The supplemental report shall address the issues of whether Defendant is eligible for a reduction of Defendant's sentence and, if so, whether Defendant is suitable for such a sentence reduction pursuant to the provisions of the Amendment and U.S.S.C. § 1B1.10, which is scheduled to become effective on March 3, 2008. The supplemental report shall specifically include the following: (a) whether Defendant is eligible for a sentence reduction and, if so; (b) a proposed calculation of the new guideline range or the percentage below the guideline range as appropriate; (c) a report on the institutional adjustment of Defendant; (d) a report on the danger of Defendant to the public; (e) a report on the post-release plans of Defendant; and (f) Defendant's place of incarceration and whether that facility has video conferencing capability.
4) Defendant's counsel and the Government shall file a response to the Probation Office's supplemental report within five (5) days of receipt of the supplemental report. Prior to filing their responses, counsel shall confer personally in a good faith effort to resolve any disputes with regard to Defendant's eligibility and suitability for a sentence reduction and shall include in their responses the issues upon which they agree or disagree. In the event counsel agree that Defendant is eligible and suitable for a sentence reduction, they shall file a stipulation to that effect.
5) Upon receipt of the Probation Office's report and counsels' responses (and stipulations, if any), the Court will either issue an Order based on the supplemental report and responses and stipulations or convene a hearing.
6) In the event the Court rejects a stipulation of counsel that Defendant is eligible and suitable for a sentence reduction, or a stipulation as to a proposed sentence, if any, the Court will enter an Order advising counsel of that fact and will allow counsel an additional period of time to supplement their responses before deciding the merits of the motion either on the written submissions or by way of a hearing as the Court determines.
7) Defendant is relieved of the responsibility of filing a separate motion requesting a sentence reduction.
8) The Clerk's Office is directed to furnish a copy of this Order to the Office of the Federal Public Defender, the United States Attorney's Office, the United States Probation Office, and the Defendant at Defendant's address of COLEMAN MED FCI.
DONE AND ORDERED at Orlando, Florida.