Opinion
CRIMINAL ACTION NO: 99-161, SECTION: J.
April 28, 2009
ORDER
Before the Court is the Defendant's Motion for Reconsideration of Denial of Ellis' Title 18 U.S.C. Section 3582(c)(2) Request for Sentencing Reduction (Rec. Doc. 120).
The Defendant was convicted at trial based on a three count indictment. At sentencing the Defendant's guidelines were calculated as a total offense level of 34, criminal history category IV, and an imprisonment range of 210 to 262 months. The Court imposed a sentence of 240 months imprisonment as to Count 2 and a sentence of 120 months as to Count 1 to run concurrently with the sentence for Count 2. Additionally, the Defendant was sentenced to a term of imprisonment of 60 months as to Count 3 to run consecutively to Counts 1 and 2. Subsequently, on July 30, 2008 the Defendant filed a motion for application of the retroactive crack amendment seeking a two-level reduction in his guidelines and sentence. That motion was denied by the Court based on a determination that the 240 month sentence the Defendant had received as to Count 2 was a statutory mandatory minimum.
The Defendant and the Government now agree that the Defendant's 240 month sentence as to Count 2 was not a statutory mandatory minimum. Instead, the Defendant's sentence included only a 120 month statutory mandatory minimum as to Count 2. As a result, the Defendant is eligible for a reduction of his sentence in accord with the retroactive crack amendment. When the two-level retroactive crack amendment is applied, the Defendant's new guidelines are a total offense level of 32, criminal history category IV, and an imprisonment range of 168 to 210 months. The Court finds that based on his revised guidelines, the Defendant's sentence on Count 2 should be reduced to 210 months imprisonment. The Defendant's sentence as to Counts 1 and 3 shall remain unchanged. Accordingly,
IT IS ORDERED that the Defendant's Motion for Reconsideration of Denial of Ellis' Title 18 U.S.C. Section 3582(c)(2) Request for Sentencing Reduction (Rec. Doc. 120) is hereby GRANTED. IT IS FURTHER ORDERED that the Court's Order Denying Reduction of Sentence (Rec. Doc. 112) is hereby VACATED. IT IS FURTHER ORDERED that the Defendant's sentence of imprisonment as to Count 2 is reduced to 210 months.
IT IS FURTHER ORDERED that the Defendant's sentence of imprisonment as to Counts 1 and 3 shall remain unchanged.