Opinion
NO. 1:06-CR-00082.
February 25, 2009
OPINION AND ORDER
This matter is before the Court on Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (doc. 29), and the United States' Response in Opposition (doc. 31). For the reasons stated herein, the Court GRANTS Defendant's motion.
On January 24, 2007, Defendant Marcus L. Smith, was sentenced to ninety (90) months imprisonment on Count Three of the Indictment, Possession With Intent to Distribute Cocaine Base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and sixty (60) months imprisonment on Count Four, Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c), with the sentences to run consecutively (doc. 25). The Court determined Defendant's total offense level was twenty-one (21), with a criminal history category of VI (Id.)
Defendant now moves, pursuant to 18 U.S.C. § 3582(c)(2), for an order reducing his sentence on Count Three from ninety (90) months to seventy-three (73) months based on the lowered sentencing guideline range, made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u) (doc. 29). Defendant contends that based on his non-violent criminal history, his exemplary post-sentencing conduct, and his ties to his family and the community make him a good candidate for reduction (Id.).
On October 7, 2008, the parties, as well as representatives from the United States Probation Department, met and all parties agreed that Defendant meets the criteria for consideration of the retroactive cocaine base guideline (doc. 31). However, the government objects to the appropriateness of such reduction in Defendant's case based on public safety grounds as he was convicted of a violation of 18 U.S.C. § 924(c) and his criminal history category was VI, the highest recidivism category (Id.). Thereafter, in accordance with General Order No. 08-03, the United States Probation Department filed a sealed Post-Sentencing Addendum. The Court reviewed the Addendum and the Probation Department's recommendation that Defendant's motion be granted.
Once it is ascertained that a Defendant is eligible for retroactive application of the new crack sentencing guideline, the Court must determine whether a reduction is appropriate in this case. To make that determination, the Court must consider the factors in 18 U.S.C. § 3553(a) to the extent they are applicable, as well as "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" and the post-sentencing conduct of the defendant. U.S.S.G. § 1B1.10, Application Note 1(B).
The Court agrees with the parties that Defendant is eligible for application of the new cocaine base guideline, and finds that based on the above listed factors a reduction in sentence is appropriate. First, the Court finds it significant that since entering the custody of the Bureau of Prisons, Defendant has successfully participated in several Bureau of Prisons (BOP) programs, and has obtained his GED. Further, the Court notes Defendant's family and community support. Finally, the Court agrees with the Probation Department's conclusion that:
The defendant has 14 criminal history points the majority of which are for drug related offenses. While the defendant's record is serious, his post sentencing conduct has been without incident and suggests he is making a commitment to positive change.
For these reasons, the Court GRANTS Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (doc. 29), and REDUCES Defendant's sentence on Count Three of the Indictment from ninety (90) months to seventy-three (73) months. All other aspects of the original sentence remain the same.
SO ORDERED.