Opinion
2:17-cr-00221-JAD-EJY-2
03-11-2024
United States of America, Plaintiff v. Kejon Ward, Defendant
ORDER DENYING MOTION TO REDUCE SENTENCE UNDER AMENDMENT 821
[ECF NO. 367]
Jennifer A. Dorsey U.S. District Judge
Defendant Kejon Ward is serving a 94-month sentence for interference with commerce by robbery and possession of a firearm while committing the crime. Ward moves for a two-point reduction in his sentence based on recent changes to the sentencing guidelines, known commonly as Amendment 821, which authorize the removal of the extra criminal-history points known as “status points” that were added because the defendant committed the crime of conviction while under a criminal-justice sentence. But because the sentence that Ward received was already below the guidelines achieved by applying these guideline changes, I find that he is not eligible for a further sentence reduction and deny his motion.
Discussion
The Sentencing Commission submitted criminal-history amendments to Congress in May 2023, they took effect in November 2023, and courts may apply them retroactively beginning in February 2024. In his pro se motion, Ward argues that he is eligible for a two-point reduction to his criminal-history points under Amendment 821's provision related to status points, added to the guidelines as § 4A1.1. Status points are additional criminal-history points applied to a defendant who committed his crime of conviction while under another criminal-justice sentence. Because the Commission found that status points are less reliable indicators of rearrest, these changes allow courts to depend less on status points to determine criminal history. A defendant with seven or more criminal-history points may receive a one-point reduction in his status points, while a defendant with six or fewer criminal-history points may have his status points eliminated for committing his offenses while under a criminal-justice sentence.
Sent'g Guidelines for U.S. Courts, 88 Fed.Reg. 60534, 60534 (Sept. 1, 2023).
ECF No. 367. Ward contends that the two-point reduction should be to his offense-level, but because § 4A1.1 only reduces status points, I construe his argument as seeking a reduction to his criminal-history points.
Id. at 60535-36; see also U.S. Sent'g Comm'n, Revisiting Status Points (2022), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2022/20220628Status.pdf.
Sent'g Guidelines for U.S. Courts, 88 Fed.Reg. 60534, 60535 (Sept. 1, 2023).
The sentencing court may reduce a defendant's sentence based on this status-points amendment if his “term of imprisonment [was] based on a sentencing range that has subsequently been lowered by the Sentencing Commission [under] 28 U.S.C. § 994(o) . . . after considering the factors set forth in section 3553(a) . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” One such policy statement is found in U.S.S.G. § 1B1.10(b)(2)(A), which states that “the court shall not reduce the defendant's term of imprisonment” under this statute “to a term that is less than the minimum of the amended guideline range....” So although the sentencing court may reduce a previously sentenced defendant's term of imprisonment based on Amendment 821, it can't do so if the defendant's original sentence was already below the new guideline range.
18 U.S.C. § 3582(c)(2) (cleaned up).
USSG § 1B1.10(b)(2)(A).
This is exactly the problem with Ward's request. He's right that § 4A1.1 eliminates the two criminal-history points that he acquired for committing his current offenses while under a criminal-justice sentence. But, as the Federal Public Defender appointed to represent Ward on this motion under this District's General Order 2023-9 tacitly acknowledges by her notice of non-eligibility, the sentence that Ward received was already well below the amended guideline range based on a variance. Ward received a sentence of 34 months for the interference-with-commerce-by-robbery count plus a mandatory consecutive statutory minimum 60 months for the possession-of-a-firearm-during-a-crime-of-violence count, for a total sentence of 94 months.That 94-month sentence was below the new guideline range achieved under Amendment 821, which is effectively 106-117 months:
ECF No. 374 at 1.
ECF No. 357.
Original guideline calculation
Level 22, Criminal History Category III
Original guideline range
51-63 months (+ 60 months)
New guideline range with two-point criminal-history score reduction under § 4A1.1
46-57 months (+ 60 months)
Original sentence
34 months (+ 60 months)
Because any further reduction would reduce Ward's term of imprisonment to one that is less than the minimum of the amended guideline range, I decline to award him a further sentence reduction.
Conclusion
IT IS THEREFORE ORDERED that Kejon Ward's motion for a sentence reduction under Amendment 821 [ECF No. 367] is DENIED with prejudice.