Opinion
Case No. 2:91-cr-131.
July 13, 2006
ORDER
Defendant Kevin Shehee pleaded guilty to one count of distribution of in excess of five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The probation officer determined that defendant's total offense level under the United States Sentencing Guidelines was a level 32, and that defendant's case, with a criminal history category VI, carried a sentencing range of 210 to 262 months. On April 3, 1992, defendant was sentenced to serve a term of incarceration of two hundred and sixty-two months.
This matter is before the court on the defendant's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Under that section, the court may modify a sentence where, subsequent to sentencing, the applicable sentencing range has been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), if such a reduction is consistent with applicable policy statements issued by the Commission. Under U.S.S.G. § 1B1.10(a), a reduction in sentence based upon the retroactive application of an amendment is consistent with that policy statement only if the amendment is one listed in U.S.S.G. § 1B1.10(c).
Defendant relies on Amendment 484 of the United States Sentencing Guidelines, effective November 1, 1993. That amendment states that for purposes of calculating drug quantity in determining the guideline sentencing range for drug offenses under 21 U.S.C. § 841, except as expressly provided, a mixture or substance "does not include materials that must be separated from the controlled substance before the controlled substance can be used." Examples include "waste water from an illicit laboratory used to manufacture a controlled substance." Id. Defendant notes a Columbus Police Department evidence and property inventory form which notes that on July 21, 1991, the police seized a Miracle Whip jar containing water and cocaine residue weighing 337.4 grams from defendant's residence. Defendant argues that he should receive a reduction in sentence based on the weight of the water in the jar.
The presentence investigation report reveals that the probation officer did not include the residue in the Miracle Whip jar in determining the relevant drug quantity. The probation officer determined relevant conduct in defendant's case based on the 98.72 grams of cocaine base sold by defendant on July 19, 1991 (6.12 grams) and July 20, 1991 (92.6 grams). Since the quantity of water and residue in the jar was not included in relevant conduct in determining defendant's offense level, the sentence in defendant's case did not violate Amendment 484.
Defendant's motion for reduction of sentence is denied.