Opinion
NO. 1:06-CR-00127.
July 14, 2009
OPINION AND ORDER
This matter is before the Court on Defendant's Motion to Reduce Sentence (doc. 56), and the government's Response in Opposition (doc. 58). For the reasons indicated herein, the Court DENIES Defendant's Motion.
On January 22, 2007, Defendant entered guilty pleas to charges for possession, with intent to distribute, cocaine base (crack), and carrying a firearm during and in relation to a drug trafficking offense (doc. 47). The Court sentenced Defendant on June 12, 2007, to 168 months on the cocaine offense and 60 months on the firearm offense, to run consecutively because the Court determined that Defendant's offense level was 30 and criminal history category was VI (Id.).
In his present Motion to Reduce Sentence, Defendant requests a reduction in his sentence as a result of Amendment 706 to the Federal Sentencing Guidelines (doc. 56). Amendment 706 reduces the offense levels for crack offenses by two levels, and was put in place to reduce the 100-1 disparity between sentencing in non-violent cases involving cocaine base (crack) and those involving cocaine. The requirements for reduction in sentence under Amendment 706 are: (1) the base level of the offense had to have been more than 12 but not more than 43; (2) the base offense could not have been computed using more than 4,500 grams of cocaine base (crack); (3) the base offense level could not have been based on career offender or armed career criminal guidelines; and (4) the original sentence must have been greater than any applicable statutory minimum punishment, unless the person received relief from the mandatory minimum due to the application of the safety valve or a motion for downward departure due to his/her "substantial assistance" under 18 U.S.C. § 3553(e).
While Defendant does meet the requirements for a reduction in sentence per Amendment 706, the government responds that due to public safety concerns Defendant's motion should be denied (doc. 58). Specifically, the government contends that because Defendant has been convicted in state court of armed robbery as a juvenile; assault as an adult; and trafficking in cocaine and marijuana and none of these contacts with the criminal justice system has deterred him from further criminal activity, the Court should not reduce his sentence. Id. The government points out that the Southern District, in considering lengthy criminal histories, has denied similar motions. See United States v. Stevenson, No. 2008 WL 1840758 (S.D. Ohio, April 22, 2008). Accordingly, the government contends that Defendant's sentence should remain unaffected by Amendment 706, because he still remains a danger to the community (doc 58).
Having reviewed this matter, the Court finds the government's position well-taken that in reducing guideline sentences the Sentencing Commission included a qualifying public safety limitation, that allows the Court to determine whether the Defendant poses a risk to public safety if released. The Court agrees that Defendant poses such a risk. The Sentencing Commission's action in reducing guideline sentences was based on a perception that non-violent crack cocaine offenders may have been treated too harshly when compared to powder-cocaine offenders. Defendant possessed a firearm in relation to a drug trafficking offense. Defendant has exhibited repeated illegal behavior, and has not corrected that behavior despite being previously convicted and incarcerated. Moreover, there is no dispute that Defendant has had disciplinary problems while incarcerated. Finally, Defendant has a criminal history category of VI, the highest in the guidelines. The Court finds that Defendant's criminal history suggests that he is at a high risk of recidivism. Accordingly, the Court DENIES Defendant's Motion to Reduce Sentence (doc. 56).
SO ORDERED.