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18 U.S.C.A. s 3582

Effective: November 2, 2002

United States Code Annotated Currentness

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part II. Criminal Procedure

+ Chapter 227. Sentences (Refs & Annos)

+ Subchapter D. Imprisonment (Refs & Annos)

>> s 3582. Imposition of a sentence of imprisonment


(a) Factors to be considered in imposing a term of imprisonment.--The court, in
determining whether to impose a term of imprisonment, and, if a term of
imprisonment is to be imposed, in determining the length of the term, shall
consider the factors set forth in section 3553(a) to the extent that they are
applicable, recognizing that imprisonment is not an appropriate means of promoting
correction and rehabilitation. In determining whether to make a recommendation
concerning the type of prison facility appropriate for the defendant, the court
shall consider any pertinent policy statements issued by the Sentencing Commission
pursuant to 28 U.S.C. 994(a)(2).



(b) Effect of finality of judgment.--Notwithstanding the fact that a sentence to
imprisonment can subsequently be--


(1) modified pursuant to the provisions of subsection (c);


(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of
Criminal Procedure and section 3742; or


(3) appealed and modified, if outside the guideline range, pursuant to the
provisions of section 3742;


a judgment of conviction that includes such a sentence constitutes a final
judgment for all other purposes.


(c) Modification of an imposed term of imprisonment.--The court may not modify a
term of imprisonment once it has been imposed except that--




© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


(1) in any case--


(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce
the term of imprisonment (and may impose a term of probation or supervised
release with or without conditions that does not exceed the unserved portion of
the original term of imprisonment), after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if it finds that--


(i) extraordinary and compelling reasons warrant such a reduction; or


(ii) the defendant is at least 70 years of age, has served at least 30 years
in prison, pursuant to a sentence imposed under section 3559(c), for the
offense or offenses for which the defendant is currently imprisoned, and a
determination has been made by the Director of the Bureau of Prisons that the
defendant is not a danger to the safety of any other person or the community,
as provided under section 3142(g);


and that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission; and


(B) the court may modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure; and


(2) in the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce
the term of imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.


(d) Inclusion of an order to limit criminal association of organized crime and
drug offenders.--The court, in imposing a sentence to a term of imprisonment upon
a defendant convicted of a felony set forth in chapter 95 (racketeering) or 96
(racketeer influenced and corrupt organizations) of this title or in the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 801 et seq.
), or at any time thereafter upon motion by the Director of the Bureau of Prisons
or a United States attorney, may include as a part of the sentence an order that
requires that the defendant not associate or communicate with a specified person,
other than his attorney, upon a showing of probable cause to believe that
association or communication with such person is for the purpose of enabling the
defendant to control, manage, direct, finance, or otherwise participate in an
illegal enterprise.



CREDIT(S)

(Added Pub.L. 98-473, Title II, s 212(a)(2), Oct. 12, 1984, 98 Stat. 1998, and
amended Pub.L. 100-690, Title VII, s 7107, Nov. 18, 1988, 102 Stat. 4418; Pub.L.
101-647, Title XXXV, s 3588, Nov. 29, 1990, 104 Stat. 4930; Pub.L. 103-322,
Title VII, s 70002, Sept. 13, 1994, 108 Stat. 1984; Pub.L. 104-294, Title VI, s
604(b)(3), Oct. 11, 1996, 110 Stat. 3506; Pub.L. 107-273, Div. B, Title III, s
3006, Nov. 2, 2002, 116 Stat. 1806.)


HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1984 Acts. House Report No. 98-1030 and House Conference Report No. 98-1159, see
1984 U.S. Code Cong. and Adm. News, p. 3182.


1988 Acts. For Related Reports, see 1988 U.S. Code Cong. and Adm. News, p. 5937.


1990 Acts. House Report Nos. 101-681(Parts I and II), 101-736, Senate Report No.
101-460, and Statement by President, see 1990 U.S. Code Cong. and Adm. News, p.
6472.


1994 Acts. House Report Nos. 103-324, 103-489, and House Conference Report No.
103-711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.


1996 Acts. House Report No. 104-788, see 1996 U.S. Code Cong. and Adm. News, p.
4021.


2002 Acts. House Conference Report No. 107-685 and Statement by President, see
2002 U.S. Code Cong. and Adm. News, p. 1120.



References in Text

The Federal Rules of Criminal Procedure, referred to in text, are set out in Title
18.



The Comprehensive Drug Abuse Prevention and Control Act of 1970, referred to in
subsec. (d), is Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1236, as amended, which is
classified principally to chapter 13 of Title 21, Food and Drugs [21 U.S.C.A. s
801 et seq.]. For complete classification of this Act to the Code, see Short
Title note set out under section 801 of Title 21 and Tables.



Amendments

2002 Amendments. Subsec. (c)(1)(A). Pub.L. 107-273, s 3006, in the matter
preceding cl. (i), inserted "(and may impose a term of probation or supervised
release with or without conditions that does not exceed the unserved portion of
the original term of imprisonment)" following "may reduce the term of
imprisonment".


1996 Amendments. Subsec. (c)(1)(A). Pub.L. 104-294, s 604(b)(3), in cl. (i),
substituted "a reduction; or" for "a reduction;".


1994 Amendments. Subsec. (c)(1)(A)(i). Pub.L. 103-322, s 70002(1) to (4),
designated existing phrase "extraordinary and compelling reasons warrant such a
reduction" as cl. (i) of subpar. (A) and made requisite changes in punctuation,
margins, and indentation to accommodate such designation.


Subsec. (c)(1)(A)(ii). Pub.L. 103-322, s 70002(5), added cl. (ii).


1990 Amendments. Subsec. (b)(2). Pub.L. 101-647 substituted "rule 35 of the
Federal Rules of Criminal Procedure" for "rule 35".


1988 Amendments. Subsec. (c)(2). Pub.L. 100-690, s 7107, substituted "994(o)" for
"994(n)".



Effective and Applicability Provisions

1996 Acts. Amendment by section 604 of Pub.L. 104-294 effective Sept. 13, 1994,
see section 604(d) of Pub.L. 104-294, set out as a note under section 13 of this
title.


1984 Acts. Section effective on the first day of first calendar month beginning
thirty-six months after Oct. 12, 1984, applicable only to offenses committed after
taking effect of sections 211 to 239 of Pub.L. 98-473, and except as otherwise
provided for therein, see section 235 of Pub.L. 98-473, as amended, set out as a
note under section 3551 of this title.


FEDERAL SENTENCING GUIDELINES

See Federal Sentencing Guidelines ss 1B1.10, 5F1.7, 18 USCA.


LAW REVIEW COMMENTARIES

Too little, too late, too slow: Compassionate release of terminally ill
prisoners--Is the cure worse than the disease? Marjorie P. Russell, 3
Widener J.Pub.L. 799 (1994).

LIBRARY REFERENCES

Corpus Juris Secundum

CJS Criminal Law s 2007, Power to Impose Particular Manner of Punishment.

RESEARCH REFERENCES

ALR Library

37 ALR, Fed. 2nd Series 449, Construction and Application of U.S.S.G. s 2x1.1,
Providing Sentencing Guideline for Conspiracy Not Covered by Specific Offense
Guideline.


35 ALR, Fed. 2nd Series 467, Construction and Application of U.S.S.G. s 3B1.1(B)
Providing Sentencing Enhancement for Manager or Supervisor of Criminal
Activity--Drug Offenses--Cocaine.


18 ALR, Fed. 2nd Series 1, Construction and Application of Notice and Hearing
Requirements of U.S.S.G. s 6a1.3 Concerning Resolution of Disputed Sentencing
Factors.


11 ALR, Fed. 2nd Series 119, Construction and Application of U.S.S.G. s 5G1.3(B),
Requiring Federal Sentence to Run Concurrently to Undischarged State Sentence When
State Sentence Has Been Fully Taken Into Account in Determining Offense Level
For...


10 ALR, Fed. 2nd Series 1, Comment Note: Construction and Application of United
States Supreme Court Holding of U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005), Rendering U.S. Sentencing Guidelines...



2002 ALR, Fed. 9, Construction and Effect of United States Sentencing Guideline s
2K2.1 (U.S.S.G. s 2K2.1, 18 U.S.C.A.) Pertaining to Unlawful Receipt, Possession,
or Transportation of Firearms or Ammunition and to Prohibited...


113 ALR, Fed. 91, Under What Circumstances Should Total Weight of Mixture or
Substance in Which Detectable Amount of Controlled Substance is Incorporated be
Used in Assessing Sentence Under United States Sentencing Guideline s 2D1.1--P...


43 ALR, Fed. 815, Acceptance by United States District Court of Notice of Appeal
in Criminal Case Untimely Filed, as Grant of Additional Time to File Notice, Under
Rule 4(B) of Federal Rules of Appellate Procedure.


32 ALR, Fed. 914, Reduction of Sentences Imposed by Federal District Court Under
Rule 35 of Federal Rules of Criminal Procedure.


29 ALR, Fed. 218, Propriety of Issuing Writ of Mandamus in Federal Criminal
Proceedings.


21 ALR, Fed. 655, Direct Review by United States Court of Appeals of Duration of
Sentence Imposed by District Court in Federal Criminal Prosecution, Where Duration
Does Not Exceed Statutorily Authorized Maximum.


10 ALR, Fed. 724, Consideration Of, or Failure to Raise or Consider, Question on
Appeal from Conviction or on Postconviction Remedy, as Precluding Its
Consideration on Subsequent Motion to Vacate Sentence Under 28 U.S.C.A. Sec....


59 ALR 5th 135, Voluntary Absence of Accused When Sentence is Pronounced.


23 ALR 4th 883, Propriety of Increased Sentence Following Revocation of Probation.


15 ALR 4th 582, Adequacy of Defense Counsel's Representation of Criminal Client
Regarding Appellate and Post-Conviction Remedies.


89 ALR 3rd 864, Validity and Effect of Criminal Defendant's Express Waiver of
Right to Appeal as Part of Negotiated Plea Agreement.


9 ALR 3rd 462, Comment Note.--When Criminal Case Becomes Moot So as to Preclude
Review of or Attack on Conviction or Sentence.



126 ALR 956, Correcting Clerical Errors in Judgments.


76 ALR 468, Illegal or Erroneous Sentence as Ground for Habeas Corpus.


Encyclopedias

51 Am. Jur. Proof of Facts 3d 413, Proof of Chemical Dependency and Rehabilitative
Efforts as Factor in Sentencing.


Am. Jur. 2d Criminal Law s 786, Consideration of Statutory Factors.


Am. Jur. 2d Criminal Law s 864, Modification of an Imposed Term of Imprisonment.


Forms

Federal Procedural Forms s 20:879, Imprisonment.


Federal Procedural Forms s 20:881, Imprisonment--Modification of Judgment;
Correction of Clear Error.


5A West's Federal Forms s 8303, Guideline Sentencing.


5A West's Federal Forms s 8363, Motion Pursuant to 18 U.S.C.A. s 3582(C)(2) for
Reduction of Sentence.


5B West's Federal Forms s 8660, Rule 43--Defendant's Presence.


5B West's Federal Forms s 8663, Correction or Reduction of Sentence.


5B West's Federal Forms App. A, Advisory Committee Notes to Federal Rules of
Criminal Procedure.


Treatises and Practice Aids

Federal Procedure, Lawyers Edition s 22:1355, Imposition of Sentence.


Federal Procedure, Lawyers Edition s 22:1629, Modification of Judgment; Correction
of Clear Error.



Federal Procedure, Lawyers Edition s 22:1630, Inclusion of an Order to Limit
Criminal Association of Organized Crime and Drug Offenders.


Federal Procedure, Lawyers Edition s 22:2056, Resentencing After Revocation of
Supervised Release.


Securities: Public and Private Offerings s 10:8, Disgorgement of Illegally
Obtained Profits.


1 Wright & Miller: Federal Prac. & Proc. s 22, Proceedings to Which the Rules
Apply.


3 Wright & Miller: Federal Prac. & Proc. s 526, Considerations in Sentencing.


3 Wright & Miller: Federal Prac. & Proc. s 583, Correction of Illegal
Sentence--Relation to Other Post--Conviction Remedies.


3 Wright & Miller: Federal Prac. & Proc. s 612, Notice.


3 Wright & Miller: Federal Prac. & Proc. s 536.1, Supervised Release.


1A Wright & Miller: Federal Prac. & Proc. s 180, Plea Agreements.


3B Wright & Miller: Federal Prac. & Proc. R 43, Presence of the Defendant.


3B Wright & Miller: Federal Prac. & Proc. s 722, Defendant's Right to be
Present--Alteration of Sentence.


3C Wright & Miller: Federal Prac. & Proc. App. C, Advisory Committee Notes for the
Federal Rules of Criminal Procedure for the United States District Courts.


15B Wright & Miller: Federal Prac. & Proc. s 3918.7, Finality--Criminal Defendant
Appeals--Conviction by Plea or Trial.


15B Wright & Miller: Federal Prac. & Proc. s 3918.8, Finality--Criminal Defendant
Appeals--Sentence Appeals.


15B Wright & Miller: Federal Prac. & Proc. s 3918.9, Finality--Criminal Defendant
Appeals--Postconviction Orders.


16A Wright & Miller: Federal Prac. & Proc. s 3950.1, Jurisdictional Effect of the
Rule.


16A Wright & Miller: Federal Prac. & Proc. s 3950.8, Criminal Cases--Time for
Appeal.


16A Wright & Miller: Federal Prac. & Proc. s 3950.10, Criminal Cases--Effect of
Posttrial Motions.


NOTES OF DECISIONS

Amendment of guidelines 3

Appeal 15

Constitutionality 1/4

Construction with sentencing guidelines 1/2

Correction of illegal sentence 12

Discretion of court 5

Eligibility for safety valve 8

Habeas corpus 13

Imprisonment 1

Jurisdiction 10

Lapse of time 11

Limiting criminal association 2

Mandatory minimum sentence 7

Number of reductions 9

Plea agreement 14

Reduction of imprisonment term 6

Remand 16

Retroactive effect of guidelines 4

Revocation of supervised release 9a

1/4. Constitutionality

Proper vehicle for defendant seeking to challenge constitutionality of sentence
for possession with intent to distribute fifty grams or more of cocaine base was
motion to vacate, rather than motion to reduce sentence based on Guidelines
amendment which lowered base offense levels applicable to crack cocaine offenses;
sentence was not based on new calculation. U.S. v. Lafayette, C.A.D.C.2009, 585
F.3d 435. Criminal Law k 1556


Sentence of life imprisonment for offense of interstate kidnapping resulting in
deaths of two people was not unconstitutionally disproportionate, even though
defendant was 16-years-old at time of the offense; defendant persuaded victim to
take trip, raped her, restrained her son during her murder, beat victim's
five-year-old son to death, concealed victims' bodies, and bragged about the
killings. U.S. v. Barraza, C.A.8 (Mo.) 2009, 576 F.3d 798, rehearing and
rehearing en banc denied. Sentencing And Punishment k 1495


Defendant did not have a Fifth or Sixth Amendment right to appointment of counsel
to represent him on motion to reduce sentence based on subsequent change to
Sentencing Guidelines which amended Drug Quantity Table to provide two-level
reduction in base offense level for particular crack cocaine offenses; motion was
simply vehicle through which appropriately sentenced defendants could urge court
to exercise leniency to give certain defendants the benefits of an amendment to
the Guidelines, rather than a challenge to appropriateness of original sentence.
U.S. v. Webb, C.A.11 (Ga.) 2009, 565 F.3d 789. Sentencing And Punishment k
2273


Rule authorizing court to lower previously imposed sentence to reflect defendant's
substantial assistance, and statute authorizing court to modify previously imposed
sentence to extent expressly permitted by rule, did not violate right to jury
trial. U.S. v. Poland, D.Me.2008, 533 F.Supp.2d 199, affirmed on other grounds
562 F.3d 35. Jury k 31.1; Jury k 34(7); Sentencing And Punishment k
2236


Failure to provide convicted crack cocaine offender moving for reduction in
sentence with memorandum from the United States Probation Office (USPO)
supplementing his original presentence report (PSR) by describing his
post-sentence prison disciplinary infractions, and failure to provide him with
opportunity to explain many of these infractions, did not violate whatever due
process rights he had, where defense counsel was provided with letter opposing his
motion for resentencing that listed his infractions in great detail, where
defendant did not dispute the accuracy of this list, and where district court, in
ruling on defendant's motion for reduction in sentence, had information before it
regarding defendant's accomplishments while in prison. U.S. v. Simmons, C.A.2
(N.Y.) 2009, 327 Fed.Appx. 305, 2009 WL 1788607, Unreported. Sentencing And
Punishment k 299


1/2. Construction with sentencing guidelines

Even if Supreme Court's Booker decision implicitly lowered defendant's sentencing
range, modification of sentence was allowed only where Sentencing Commission had
lowered range. U.S. v. Price, C.A.10 2006, 2006 WL 637152. Sentencing And
Punishment k 2262



In sentencing defendant to 120 months' imprisonment for bank robbery, district
court did not violate statute prohibiting imposition or lengthening of term of
imprisonment for purpose of providing correction and rehabilitation; district
court imposed 120-month term, which was below advisory sentencing guidelines
range, for proper reasons under statutory sentencing factors, court explicitly
stated it would not incarcerate defendant for purpose of providing him with
medical treatment, and in response to defense counsel's request that court provide
medical treatment and drug treatment as part of sentence, court considered need
for medical treatment in context of recommending to Bureau of Prisons that
defendant serve his sentence in facility where he could receive necessary medical
care. U.S. v. Watson, C.A.3 (Pa.) 2007, 482 F.3d 269, post-conviction relief
denied 2009 WL 2393450. Robbery k 30; Sentencing And Punishment k 109


Statute requiring district court, when "determining whether to impose a term of
imprisonment," to recognize "that imprisonment is not an appropriate means of
promoting correction and rehabilitation," and statute instructing Sentencing
Commission to insure that Sentencing Guidelines reflect inappropriateness of
imposing a term of imprisonment for purpose of rehabilitation, apply only when a
court is initially imposing a sentence of imprisonment for the crime committed,
not when the court is revoking a term of supervised release. U.S. v. Tsosie,
C.A.10 (N.M.) 2004, 376 F.3d 1210, certiorari denied 125 S.Ct. 1298, 543 U.S.
1155, 161 L.Ed.2d 122. Sentencing And Punishment k 45; Sentencing And
Punishment k 1833; Sentencing And Punishment k 2033


On government's motion to reduce already-imposed sentence for substantial
assistance, federal district court may not enlarge reduction based on factors
unrelated to substantial assistance, i.e. statutory factors, even though governing
rule does not expressly exclude such factors; interpreting rule more broadly would
effect substantive change by eliminating rule's valid previous limitations that
reduction "reflect" substantial assistance and "accord with the Sentencing
Commission's guidelines and policy statements," and thus would violate Rules
Enabling Act's prohibition of abridgement/enlargement/modification of any
substantive right. U.S. v. Poland, D.Me.2008, 533 F.Supp.2d 199, affirmed on
other grounds 562 F.3d 35. Sentencing And Punishment k 2250


Statute governing modification of an imposed term of imprisonment in case of a
defendant who had been sentenced to a term of imprisonment based on a sentencing
range that had subsequently been lowered by the Sentencing Commission was not so
ambiguous as to require application of Rule of Lenity in defendant's motion to
reduce sentence for possession of cocaine base, where plain language of the
statute and common meaning of its terms provided sufficient guidance to the Court.
U.S. v. Rivera-Crespo, E.D.Pa.2008, 543 F.Supp.2d 436, as amended. Sentencing And
Punishment k 2262



Post-conviction movant was not entitled to reduction of his sentence based upon
remedial decision in United States v. Booker, rendering federal sentencing
guidelines advisory, where such decision was not amendment of guidelines by
Sentencing Commission with effect of lowering movant's applicable sentencing
range. U.S. v. Padilla, C.A.3 (Pa.) 2006, 190 Fed.Appx. 119, 2006 WL 2092443,
Unreported, certiorari denied 127 S.Ct. 535, 549 U.S. 1011, 166 L.Ed.2d 397.
Criminal Law k 1456


Booker does not support a sentence reduction requested pursuant to the statute
authorizing a court to modify a sentence based on a subsequent lowering of a
Sentencing Guidelines range. U.S. v. Reed, C.A.10 (Okla.) 2006, 176 Fed.Appx.
944, 2006 WL 1174608, Unreported. Sentencing And Punishment k 2262


Booker rule generally requiring that facts supporting enhanced sentence be proved
to jury or admitted by defendant did not apply retroactively to cases on
collateral review, and thus did not support sentence reduction requested pursuant
to statute authorizing court to modify sentence based on subsequent lowering of
Sentencing Guidelines range. U.S. v. Culp, C.A.10 (Kan.) 2006, 168 Fed.Appx. 319,
2006 WL 446073, Unreported. Courts k 100(1)


1. Imprisonment

In sentencing the defendant to 115 months' imprisonment for bank robbery and
attempted bank robbery, the district court violated the statute providing that
imprisonment was not an appropriate means of promoting rehabilitation by relying
on the defendant's need of medical care as a principal factor in the court's
decision to impose sentence of incarceration at the top of the sentencing
guidelines range, even though the defendant's need for medical care was not the
sole determining factor in the court's decision. U.S. v. Hoffa, C.A.3 (Pa.) 2009,
587 F.3d 610. Sentencing And Punishment k 109


Federal district court, in imposing sentence for uttering counterfeit security,
lacked discretion to impose 30-month term of imprisonment, which was almost four
times the advisory Sentencing Guidelines range, on sole ground that term of that
length was believed necessary to make defendant eligible for Bureau of Prisons'
500-hour drug treatment program; rehabilitation could be taken into account for
sentencing purposes, but rehabilitation goal could not be carried out via
imprisonment, as opposed to supervised release or other means. U.S. v. Manzella,
C.A.3 (Pa.) 2007, 475 F.3d 152, as amended. Forgery k 51; Sentencing And
Punishment k 112


Defendant's sentence to term of imprisonment, rather than home confinement, was
not imposed in violation of statutory mandate that "imprisonment is not an
appropriate means of promoting correction and rehabilitation"; Sentencing
Guidelines themselves take into account that statutory mandate, and district court
followed options available to it under Sentencing Guidelines with respect to kind
of sentence defendant was to receive. U.S. v. Lively, C.A.6 (Ohio) 1994, 20 F.3d
193. Sentencing And Punishment k 1833


2. Limiting criminal association

Portion of sentence restricting defendant's communications with all persons except
counsel and close family members did not exceed court's authority to limit
associational rights of defendants convicted of racketeering offenses, even though
order did not identify "specified person" with whom contact was prohibited;
conditions imposed were reasonably formulated to accomplish statute's objective of
preventing defendant from continuing his illegal activities while incarcerated.
U.S. v. Felipe, C.A.2 (N.Y.) 1998, 148 F.3d 101, certiorari denied 119 S.Ct. 246,
525 U.S. 907, 142 L.Ed.2d 202, certiorari denied 119 S.Ct. 628, 525 U.S. 1059, 142
L.Ed.2d 566. Sentencing And Punishment k 30


In sentencing the defendant, the district court would not exercise its discretion
to impose conditions of imprisonment limiting defendant's right to interact with
relatives who were criminals and with members or associates of organized crime
families; the court was unable to devise an order that would impose the
government's requested conditions without leading to a substantial likelihood of
particularly harsh prison condition, including almost certainly incarceration in a
"supermax" prison, solitary confinement, or segregation, and there was no evidence
that the defendant was more dangerous to other prisoners, guards, or to outside
society, than were others of his ilk. U.S. v. Corozzo, E.D.N.Y.2009, 256 F.R.D.
398. Sentencing And Punishment k 30


3. Amendment of guidelines

Defendant convicted of conspiracy to distribute and possess with intent to
distribute crack cocaine and possession with intent to distribute the same, and
sentenced to a 96-month prison term, was not entitled to sentencing reduction
based on retroactive amendment to Sentencing Guidelines for crack cocaine
offenses; defendant had an extensive criminal history, and the longer sentence was
necessary to protect society. U.S. v. Borden, C.A.2 (N.Y.) 2009, 2009 WL 1025717,
amended and superseded 564 F.3d 100. Sentencing And Punishment k 2262


Sentence for possessing crack cocaine with intent to distribute it was based on a
sentencing range that was subsequently lowered by the Sentencing Commission when
it amended the Sentencing Guidelines applicable to crack cocaine, and thus
district court had authority to reduce the sentence pursuant to statute allowing a
court to modify a term of imprisonment where the defendant had been sentenced
based on a sentencing range that was subsequently lowered by the Commission, even
though sentence was imposed pursuant to plea agreement; agreement itself called
for sentence within Guidelines range, parties' negotiations centered on this
range, and court considered range before accepting plea. U.S. v. Cobb, C.A.10
(Colo.) 2009, 584 F.3d 979. Sentencing And Punishment k 2262


Amendment to sentencing guidelines that adjusted downward by two levels the
offense levels for crack cocaine offenses did not lower the sentencing range based
on which the defendant was sentenced to 120-months' imprisonment for possession
with intent to distribute crack cocaine, since the defendant's offense level was
taken from the career offender guideline, rather than the crack cocaine guideline,
and thus, the district court lacked authority to modify the defendant's sentence
pursuant to the statute authorizing modification of a sentence if the defendant
was sentenced based on a sentencing range that had subsequently been lowered by
the Sentencing Commission. U.S. v. Collier, C.A.8 (Mo.) 2009, 581 F.3d 755,
rehearing and rehearing en banc denied. Sentencing And Punishment k 2262


District court, in considering defendant's motion for reduction of sentence based
on an amendment to the Sentencing Guidelines, was not authorized to impose a new
sentence below the amended Guidelines range, where defendant's original sentence
was within the then-applicable Guidelines range. U.S. v. Douglas, C.A.11 (Ga.)
2009, 576 F.3d 1216. Sentencing And Punishment k 2262


Defendants convicted of conspiracy to distribute more than 50 grams of crack and
sentenced as career offenders were not entitled to resentencing on ground that
Sentencing Commission reduced the sentencing disparity between crack and powder
cocaine offenses; the amendment to the Guidelines did not provide benefit to
career offenders, as it would not lower the applicable Guidelines range. U.S. v.
Knox, C.A.7 (Ill.) 2009, 573 F.3d 441. Sentencing And Punishment k 2262


Decision in United States v. Booker holding that sentencing guidelines were
advisory did not apply to resentencing of defendant based on retroactive amendment
to crack cocaine guidelines. U.S. v. Dillon, C.A.3 (Pa.) 2009, 572 F.3d 146,
redesignated as opinion and publication ordered, certiorari granted 2009 WL
2899562. Sentencing And Punishment k 2325


An amendment to the sentencing guidelines that reduced base offense levels for
offenses involving cocaine base did not have the effect of lowering the guidelines
range applicable to the defendants' 168-month sentences for conspiracy to possess
with intent to distribute cocaine and cocaine base, and thus, the defendants were
not eligible for reduction of their sentences under the statute authorizing
sentence reduction in the case of a defendant who was sentenced to a term of
imprisonment based on a sentencing range that was subsequently lowered by the
Sentencing Commission, because the defendant's guidelines offense levels were
calculated based solely on the amount of powder cocaine involved in their
offenses, without reference to the offense levels for cocaine base. U.S. v.
Johnson, C.A.6 (Ohio) 2009, 569 F.3d 619. Sentencing And Punishment k 2262


District court did not err in denying defendant's request to reduce his sentence
based on subsequent change to the Sentencing Guidelines which amended the Drug
Quantity Table to provide two-level reduction in base offense levels for
particular crack cocaine offenses; although the amendment reduced defendant's
adjusted offense level from 42 to 40, the change did not lower the defendant's
sentencing range. U.S. v. Webb, C.A.11 (Ga.) 2009, 565 F.3d 789. Sentencing And
Punishment k 2262


While interpretation of phrases "based on" and "the effect of lowering the
defendant's applicable guideline range" as used in statute governing sentence
modification and Sentencing Guidelines policy relating to sentence reductions
based on guidelines amendment, respectively, was needed, consideration of the
language structure, subject matter, context and history the statute and policy
statement established that they did not contain such an ambiguity that the Court
could make no more than a guess as to what Congress intended, as would require
application of rule of lenity. U.S. v. Doe, C.A.3 (Pa.) 2009, 564 F.3d 305,
certiorari denied 130 S.Ct. 563. Statutes k 241(2)


Sentencing Commission's policy statement providing that courts were not authorized
to reduce a defendant's sentence on basis of a retroactive amendment to the
Sentencing Guidelines unless the amendment had the effect of lowering defendant's
applicable guideline range was merely a paraphrase of statutory limitation on
resentencing, and thus the policy statement was not the result of an unlawful
delegation of Congress's power to limit jurisdiction of the courts. U.S. v.
Dryden, C.A.10 (Kan.) 2009, 563 F.3d 1168, certiorari denied 130 S.Ct. 311, 175
L.Ed.2d 206. Sentencing And Punishment k 2236


An amendment to the sentencing guidelines that retroactively reduced offense
levels for cocaine base offenses did not lower the sentencing guidelines ranges
under which the defendants were sentenced for offenses involving possession with
intent to distribute cocaine base and conspiracy to distribute cocaine base, and
thus, that amendment did not render the defendants eligible for reductions of
their sentences under the statute authorizing sentence reduction in the case of a
defendant who was sentenced based on a guideline range that was subsequently
lowered by the Sentencing Commission, since the defendants' applicable guidelines
ranges were based not on the offense levels for cocaine base offenses, but on the
statutory mandatory minimum penalties for their offenses. U.S. v. Byers, C.A.8
(Mo.) 2009, 561 F.3d 825, certiorari denied 130 S.Ct. 227, 175 L.Ed.2d 157.
Sentencing And Punishment k 2262


An amendment to the sentencing guidelines that reduced the base offense levels for
crack cocaine offenses by two levels did not affect the applicable guidelines
range under which the defendant was sentenced for distribution of crack cocaine,
since his sentencing range was determined based on the guidelines' career-offender
offense level, and thus the statute authorizing sentence reduction in the case of
a defendant who had been sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by the Sentencing Commission did not authorize
the district court to reduce the defendant's 188-month sentence. U.S. v. Mateo,
C.A.3 (Pa.) 2009, 560 F.3d 152. Sentencing And Punishment k 2262


Under the statute authorizing sentence reduction in the case of a defendant who
was sentenced to a term of imprisonment based on a sentencing range that was
subsequently lowered by the Sentencing Commission, the defendant was not entitled
to a reduction of his 165-month sentence for aiding and abetting distribution of
cocaine base, possession with intent to distribute cocaine, and possession with
intent to distribute cocaine base based on an amendment to the sentencing
guidelines that reduced the offense level for the defendant's offenses from 38 to
36, since the court in sentencing the defendant varied downward from the
applicable offense level to a level of 34, which was lower than the applicable
level under the amendment guidelines. U.S. v. Brown, C.A.10 (Wyo.) 2009, 556 F.3d
1108, certiorari denied 130 S.Ct. 219, 175 L.Ed.2d 152, rehearing denied 2009 WL
4111125. Sentencing And Punishment k 2262


Defendant convicted of possession with intent to distribute crack cocaine was not
entitled to modification of his sentence on ground that the Sentencing Commission
reduced the base-offense levels for crack-cocaine offenses under the Sentencing
Guidelines and made the changes retroactive, where the defendant had received the
statutory minimum sentence, which was much lower than the effective Guidelines
range, due to government's motion for reduced sentence based on defendant's
substantial assistance. U.S. v. Forman, C.A.7 (Ill.) 2009, 553 F.3d 585,
certiorari denied 129 S.Ct. 1924, 173 L.Ed.2d 1071, certiorari denied 129 S.Ct.
2817, 174 L.Ed.2d 310. Sentencing And Punishment k 2262


Defendant, who at sentencing was granted downward departure from career offender
guideline range down to the crack guideline range, upon finding that the career
offender status overstated defendant's criminal history, was eligible for
two-level sentence reduction based on Sentencing Commission's amendment to drug
table that provided two-level reduction in base offense levels for crack cocaine
offenses, since district court premised defendant's ultimate sentence on the crack
cocaine guidelines. U.S. v. McGee, C.A.2 (Conn.) 2009, 553 F.3d 225. Sentencing
And Punishment k 2262


The district court is required to apply the guideline provisions in effect at the
time of sentencing. U.S. v. Pedraza, C.A.10 (N.M.) 2008, 550 F.3d 1218,
certiorari denied 129 S.Ct. 2406, 173 L.Ed.2d 1313. Sentencing And Punishment
k 664(1)


District court lacked authority, in sentence modification proceedings following
amendment of crack cocaine-related Sentencing Guidelines, to impose sentence that
fell below the amended Guideline range, given binding policy statement by
Sentencing Commission. U.S. v. Rhodes, C.A.10 (N.M.) 2008, 549 F.3d 833,
certiorari denied 129 S.Ct. 2052, 173 L.Ed.2d 1136. Sentencing And Punishment
k 2262


The amendment to the sentencing guidelines reducing by two levels the base offense
level assigned to quantities of crack cocaine did not entitle defendant to a
reduction of his 188-month sentence for distributing crack cocaine within 1,000
feet of a school, since the amendment had no effect on the career offender
guidelines, which were the guidelines used by the district court in establishing
defendant's base offense level. U.S. v. Sharkey, C.A.10 (Kan.) 2008, 543 F.3d
1236. Sentencing And Punishment k 2262


The remedy for defendants who believe they are entitled to resentencing based on
retroactive amendments to the Sentencing Guidelines is to file a motion for
sentencing modification with the district court. U.S. v. Chandler, C.A.1 (R.I.)
2008, 534 F.3d 45. Sentencing And Punishment k 2262


Booker, which made the sentencing guidelines advisory, appliesto resentencing
proceedings brought under the statute authorizing court to modify a sentence based
on subsequent lowering of Sentencing Guidelines range by Sentencing Commission,
and thus the newly calculated Guidelines range is advisory; Booker made clear that
the guidelines were no longer mandatory in any context. U.S. v. Hicks, C.A.9
(Alaska) 2007, 472 F.3d 1167. Sentencing And Punishment k 2239


Amendment 500 to Sentencing Guidelines on effect of aggravating role in the
offense by managing one or more participants did not entitle defendant to
reduction in sentence; since the defendant managed one or more participants and
amendment reflected law in circuit at time of sentencing, applying the amendment
would not reduce sentence. U.S. v. Rodriguez-Pena, C.A.1 (Puerto Rico) 2006, 470
F.3d 431. Sentencing And Punishment k 2262



Defendant was not sentenced to a term of imprisonment subsequently lowered by the
Sentencing Commission, as would warrant application of Sentencing Guidelines'
amendment allowing modification of such sentence; defendant was sentenced well
after effective date of the amendment. U.S. v. Herrera-Garcia, C.A.10 (N.M.)
2005, 422 F.3d 1202. Sentencing And Punishment k 664(4)


For a sentence to be reduced retroactively under statutory subsection providing
for modification of an imposed term of imprisonment, a court must determine
whether there has been an amendment to the Sentencing Guidelines that has lowered
the guideline range applicable to that sentence and is listed under guidelines
policy statement regarding reduction in term of imprisonment as a result of
amended guideline range. U.S. v. Armstrong, C.A.11 (Ala.) 2003, 347 F.3d 905.
Sentencing And Punishment k 2262


Defendant did not waive his right to move for modification of his sentence based
on a subsequent amendment in the Sentencing Guideline that was applied to his
case, although he waived his right to appeal or collaterally attack sentence as
part of plea agreement, where plea agreement did not explicitly state that
defendant waived his right to file such a motion, and motion did not challenge
original sentence so much as it sought modification based upon subsequent
amendment of applicable Sentencing Guideline. U.S. v. Chavez-Salais, C.A.10
(N.M.) 2003, 337 F.3d 1170. Criminal Law k 1026.10(4)


Court of Appeals reviews district court's decision whether to reduce defendant's
sentence based on a subsequent change in Sentencing Guidelines for abuse of
discretion. U.S. v. Brown, C.A.11 (Ga.) 2003, 332 F.3d 1341. Criminal Law k
1156.3


Defendant convicted on methamphetamine charges was not entitled to reduction of
his prison sentence based on amendment to sentencing guidelines providing for
exclusion of "waste materials" and "intermediary solutions," where such amendment
became effective more than four years before defendant was sentenced. U.S. v.
Alvarez, C.A.5 (Tex.) 2000, 210 F.3d 309. Sentencing And Punishment k 2262


Defendant seeking reduction of sentence under statute allowing court to reduce
sentence when sentencing range is subsequently lowered by Sentencing Commission,
was not entitled to de novo sentencing, so that date of sentence would be after
date of "safety valve" amendment to sentencing statute allowing imposition of
guidelines range sentence below statutory minimum when specified conditions are
met; statute under which he was proceeding allowed for sentence reduction if
consistent with applicable policy statements issued by Sentencing Commission,
policy statement section of Sentencing Guidelines provided for consideration only
of what sentence would have been, giving effect to amendments expressly referenced
in section, and "safety valve" amendment was not expressly referenced. U.S. v.
Torres, C.A.10 (N.M.) 1996, 99 F.3d 360, certiorari denied 117 S.Ct. 1273, 520
U.S. 1129, 137 L.Ed.2d 350. Criminal Law k 1192


Change in marijuana equivalency tables, that for sentencing purposes, one
marijuana plant would be considered equivalent to 100 grams of marijuana, rather
than one kilogram, was not lowering of sentencing range under which defendant who
pleaded guilty to manufacturing marijuana had been sentenced, and so change did
not provide trial court with authority to modify defendant's sentence. U.S. v.
Mullanix, C.A.9 (Or.) 1996, 99 F.3d 323, certiorari denied 117 S.Ct. 1457, 520
U.S. 1180, 137 L.Ed.2d 561. Sentencing And Punishment k 2262


Trial court did not abuse its discretion in refusing to modify defendant's
sentence for drug offense involving mixture containing phenyl-2-propanone, a
prohibited precursor to amphetamine, despite amendment to Sentencing Guidelines
that could reduce defendant's sentencing range, where trial court reviewed
defendant's sentence in light of amendment, considered relevant factors for
imposition of sentence, found that amendment did not warrant change in sentence,
and adopted addendum to presentence report which provided alternative means of
sentencing, based on conspiracy to manufacture amphetamine, that would result in
same offense level. U.S. v. Dorrough, C.A.10 (Okla.) 1996, 84 F.3d 1309,
certiorari denied 117 S.Ct. 446, 519 U.S. 987, 136 L.Ed.2d 342. Sentencing And
Punishment k 2262


Defendant's argument that he was entitled to resentencing in accordance with
recent amendments to career offender sentencing guideline should have been
directed to district court rather than Court of Appeals. U.S. v. Jones, C.A.7
(Ill.) 1995, 55 F.3d 289, certiorari denied 116 S.Ct. 161, 516 U.S. 857, 133
L.Ed.2d 104. Sentencing And Punishment k 1399


Trial court was not required to reduce sentence imposed upon defendant convicted
of manufacturing methamphetamine to reflect change in Sentencing Guidelines
redefining quantity of controlled substance to exclude materials required to be
separated from substance prior to use; sentence imposed was still below
sentencing range for base offense level, after level was reduced to reflect
smaller quantity of drug. U.S. v. Shaw, C.A.5 (Tex.) 1994, 30 F.3d 26, rehearing
denied. Sentencing And Punishment k 664(5)


Provision of the Sentencing Reform Act that defendant who has been sentenced for a
term of imprisonment based on a sentencing range which has been subsequently
lowered by the Sentencing Commission may seek a reduction of the sentence applies
only to offenses committed on or after the effective date of the federal
sentencing guidelines. U.S. v. Watson, C.A.5 (Tex.) 1989, 868 F.2d 157.
Sentencing And Punishment k 664(2)


Sentencing Reform Act provision, which provides reduction of sentence for
defendant whose original sentence was based on sentencing range that has
subsequently been lowered by Sentencing Commission, did not authorize reduction of
sentence imposed on defendants for offenses committed before pertinent provisions
of Sentencing Reform Act took effect; Sentencing Reform Act applies only to
offenses committed after November 1, 1987, and defendants' offenses were committed
before that date. U.S. v. Argitakos, C.A.2 (N.Y.) 1988, 862 F.2d 423. Sentencing
And Punishment k 664(2)


District court's initial selection of applicable offense guideline for defendant's
conviction of assault on federal officer was based on defendant's offense of
conviction, not on guideline for attempted murder of federal officer charge on
which defendant was acquitted, precluding application of guidelines amendment
requiring that initial choice of offense guideline be based on offense of
conviction, rather than on judicial findings of actual conduct that would never be
made by jury; sentencing court had reached higher base offense level attempted
murder guideline through cross-referencing provision in offense guideline for
defendant's firearms convictions. U.S. v. Gatling, D.D.C.2009, 639 F.Supp.2d 4.
Sentencing And Punishment k 2262


The defendant's 322-month sentence for possessing cocaine base with intent to
distribute and firearms offenses was not based on a sentencing range that was
subsequently lowered by a sentencing guidelines amendment that lowered offense
levels for crack cocaine offenses, so as to make the defendant eligible for a
sentence reduction under the statute authorizing sentence reduction in the case of
a defendant who was sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by the Sentencing Commission, because the
defendant was sentenced based on his status as a career offender under the Armed
Career Criminal Act (ACCA), rather than on the guidelines range for crack cocaine
offenses. Lewis v. U.S., D.Mass.2009, 637 F.Supp.2d 71. Sentencing And
Punishment k 2262


Defendant convicted of crack cocaine offenses was entitled to a sentence reduction
based on the amendment to the Sentencing Guidelines lowering the base offense
levels corresponding to crack cocaine quantity ranges; he had not incurred any
disciplinary infractions during his incarceration, he had completed over 5,000
hours in educational courses and a 40-hour drug awareness program, and he had
received excellent work evaluations for his institutional work assignments and was
regarded as a skilled, reliable employee. Mock v. U.S., S.D.N.Y.2009, 632
F.Supp.2d 323. Sentencing And Punishment k 2262


Under the statute authorizing sentence reduction in the case of a defendant who
was sentenced to a term of imprisonment based on a sentencing range that was
subsequently lowered by the Sentencing Commission, the defendant was ineligible
for a reduction of his life sentence for distribution of and possession with
intent to distribute crack cocaine based on an amendment to the sentencing
guidelines that reduced the offense levels for crack cocaine offenses involving
less than 4.5 kilograms of crack cocaine, since the defendant's offense involved
more than 4.5 kilograms of crack cocaine. Bowman v. U.S., S.D.N.Y.2009, 629
F.Supp.2d 318. Sentencing And Punishment k 2262


Sentencing Guidelines played no significant role in court's decision to approve
agreed-to 15-year sentence in prosecution for conspiracy to distribute and
distribution of cocaine base, and attempt to possess with intent to distribute
powdered cocaine, and thus defendant was not entitled to reduction of sentence
based on amendments to Guidelines related to crack cocaine; agreed-to sentence
represented a near miracle of advocacy by defendant's counsel and professionalism
by prosecutor, and transcript of sentencing proceeding disclosed no references to
Guidelines. U.S. v. Santos, D.Mass.2009, 629 F.Supp.2d 158. Sentencing And
Punishment k 2262


Amendment to the sentencing guidelines reducing the disparity between punishment
for cocaine offenses and cocaine base (crack) offenses did not alter defendant's
advisory guideline range due to the operation of another guideline provision for a
career-offender enhancement, and thus, the court lacked authority to reduce
defendant's sentence under the statute governing eligibility for a sentence
reduction based on a retroactive amendment to the sentencing guidelines. U.S. v.
Broadwater, E.D.N.C.2009, 613 F.Supp.2d 740. Sentencing And Punishment k 2262


Reduction of defendant's sentence was warranted based on recent amendment to the
United States Sentencing Guidelines which lowered the base offense levels
applicable to crack cocaine offenses; at sentencing district court stated that he
was sentencing defendant for the sale of 800 grams of crack cocaine per week,
resulting in a base offense level of 36, at no time did he characterize this as a
departure, let alone calculate what the offense level would otherwise have been
absent a departure, determination remained unchanged notwithstanding the
Government's successful cross-appeal, the remand from Court of Appeals, and the
defendant's resentencing to a term of 360 months, and final judgment on
resentencing once again expressly stated that defendant's sentence was within the
Guidelines range. U.S. v. Guzman, S.D.N.Y.2009, 611 F.Supp.2d 369. Sentencing
And Punishment k 2262



Reduction of defendant's sentence for distribution and possession with intent to
distribute cocaine base was warranted based on Sentencing Commission's subsequent
amendment to guideline range under which he was sentenced, though district court
was limited by circuit precedent to maximum of five month reduction of defendant's
240-month sentence; defendant was 51-years old and therefore unlikely to
recidivate, and his post-sentencing conduct was exemplary. U.S. v. Jones,
D.Colo.2009, 606 F.Supp.2d 1293, remanded 2009 WL 3138865. Sentencing And
Punishment k 2262


Reduction of defendant's sentence for conspiracy to distribute and possess with
the intent to distribute narcotics and for managing a drug establishment was not
warranted based on recent amendments to Sentencing Guidelines relating to crack
cocaine, where defendant was sentenced solely for the distribution of cocaine, and
not for crack cocaine. U.S. v. Fermin, S.D.N.Y.2008, 587 F.Supp.2d 576.
Sentencing And Punishment k 2262


Defendant whose sentence was based on statutory mandatory minimum of 240 months,
which exceeded applicable Sentencing Guidelines range for his crime, was not
entitled to sentence reduction upon retroactive amendment of Sentencing Guidelines
to lower sentencing ranges for offenders responsible for crack cocaine; amendment
did not change statutory mandatory minimum and, in departing downward from minimum
to impose 192-month sentence based on defendant's substantial assistance to
government, court had been limited by Guidelines to considering nature, extent,
and significance of defendant's assistance and thus could not have considered size
of disparity between recommended guidelines range and mandatory minimum. U.S. v.
Holmes, D.S.C.2008, 586 F.Supp.2d 584, affirmed 322 Fed.Appx. 323, 2009 WL 1069317
. Sentencing And Punishment k 2262


Retroactive amendment to Sentencing Guidelines calling for reduction of sentences
for crack cocaine offenses was advisory in nature, and thus district court ruling
on defendant's motion for reduction of sentence pursuant to amendment was not
bound by Sentencing Commission's prohibition against reducing defendant's term of
imprisonment below amended guidelines range. U.S. v. Reid, D.D.C.2008, 584
F.Supp.2d 187. Sentencing And Punishment k 2262


In a case in which district court had granted defendant's motion for sentence
reduction and reduced his 420-month sentence for possession of 500 grams or more
of cocaine with intent to distribute to 364 months based on amendment to the
sentencing guidelines regarding crack cocaine sentencing, defendant was not
entitled to a full resentencing hearing and a further reduction in his sentence
based on a reconsideration of the statutory sentencing factors. U.S. v.
Washington, C.D.Ill.2008, 582 F.Supp.2d 1051. Sentencing And Punishment k
2262; Sentencing And Punishment k 2302



Sentencing reduction applicable to defendants convicted of cocaine base possession
and distribution offenses is limited to two guideline levels, rather than full
resentencing. U.S. v. Atwell, M.D.Fla.2008, 574 F.Supp.2d 1260, reconsideration
denied , affirmed 326 Fed.Appx. 538, 2009 WL 1492642, certiorari denied 130 S.Ct.
379, 175 L.Ed.2d 232. Sentencing And Punishment k 2328


Under statute authorizing sentence reduction in the case of a defendant who was
sentenced to a term of imprisonment based on a sentencing range that had
subsequently been lowered by the Sentencing Commission, defendant was eligible for
a reduction in his sentence for possession with intent to distribute crack
cocaine, based on an amendment to the sentencing guidelines that reduced the base
offense levels for crack cocaine offenses, since the amendment lowered defendant's
applicable guideline range; defendant was held responsible for 24.49 grams of
crack, which translated to a base offense level of 28 and a guideline range of 78
and 97 months, and under the amended guidelines, his base offense level was 26,
resulting in a range of 63 to 78 months. U.S. v. Martin, E.D.Pa.2009, 602
F.Supp.2d 611. Sentencing And Punishment k 2262


Defendant's 136 month sentence for distribution of cocaine base was based on
guideline range first determined from the career offender provision and not on the
guideline range applicable under Drug Quantity Table, and, thus, reduction in
sentence was not warranted based on Sentencing Commission amendment that generally
adjusted downward by two levels the base offense level assigned to quantities of
cocaine base listed in the Drug Quantity Table; the court varied from the
guideline range of the career offender provision by reducing the sentence after
considering other mitigating statutory sentencing factors. U.S. v. Corber,
D.Kan.2009, 593 F.Supp.2d 1236. Sentencing And Punishment k 2262


Term,"applicable Guidelines range," in guideline providing that subsequent
reduction in term of imprisonment is not permitted if guidelines amendment does
not have effect of lowering defendant's "applicable guidelines range," referred to
defendant's sentence of life calculated under guideline applying statutorily
mandated minimum sentence, rather than initial sentencing range of 151-188 months
calculated from base offense level, and thus defendant was not eligible for
sentence reduction, consistent with policy statement, upon guidelines amendment
lowering base offense levels for quantities of crack cocaine; sentence subsumed
and replaced his sentencing range. U.S. v. Doe, E.D.Pa.2008, 578 F.Supp.2d 771.
Sentencing And Punishment k 2262


Reduction in defendant's sentence of 63 months' imprisonment for distributing or
possessing with intent to distribute cocaine base based on amendments to the
Sentencing Guidelines with regard to crack cocaine offenses was not warranted;
defendant had engaged in violent conduct post-sentencing, including repeatedly
stabbing a corrections officer in the head and neck with a sharpened piece of
metal that had been fashioned into a knife-like weapon, original sentence was
reasonable and appropriate, and consideration of the disparity between the
Guidelines' treatment of crack and powder offenses would not have altered the
sentence the court originally imposed. U.S. v. Davis, S.D.N.Y.2008, 577 F.Supp.2d
665. Sentencing And Punishment k 2262


In exercising its discretion to reduce the defendant's 188-month sentence for
conspiracy to distribute and possess with intent to distribute 50 grams or more of
cocaine base under the statute authorizing a sentence reduction based on a
retroactive sentencing guidelines amendment lowering the applicable guidelines
range, the district court was required under United States v. Booker to apply the
amended guidelines range as advisory, rather than mandatory. U.S. v. Ragland,
D.D.C.2008, 568 F.Supp.2d 19. Sentencing And Punishment k 661.5


The district court lacked jurisdiction to modify the defendant's 18-year sentence
for possession with intent to distribute cocaine base based on an amendment to the
sentencing guidelines that reduced the base offense level for most crimes
involving cocaine base, since the defendant's guidelines range was determined
under the guidelines' career offender provisions, and the amendment had no effect
on the guidelines range to which the defendant would be subject as a career
offender were he to be sentenced after the amendment. U.S. v. Santos,
D.Mass.2008, 565 F.Supp.2d 263. Sentencing And Punishment k 2262


The defendant was ineligible to receive a reduction in his 240-month sentence for
racketeering based on an amendment to the sentencing guidelines that reduced the
base offense level for most crimes involving cocaine base, although the
defendant's base offense level had been determined based on the attribution to him
of 1770.03 grams of cocaine base and 3.37 grams of cocaine powder, since the
amendment did not have the effect of lowering his applicable guidelines range;
defendant's guidelines sentence of 240 months was determined based on the
240-month statutory maximum sentence for his offense, rather than on his base
offense level and criminal history category, which would have led to a guidelines
range of 360 months to life imprisonment. U.S. v. Jones, D.Mass.2008, 565
F.Supp.2d 261. Sentencing And Punishment k 2262


The district court was not authorized to reduce defendant's 235-month sentence for
conspiracy to distribute 50 grams or more of crack cocaine based on amendment to
sentencing guidelines that reduced maximum offense level for defendant's offense
to 38, since that amendment did not lower the defendant's applicable guidelines
range of 360 months to life imprisonment; although offense level that was applied
in defendant's sentencing was 40, an offense level reduction to 38 would still
have resulted in a guidelines range of 360 months to life. U.S. v. Valentine,
D.Neb.2008, 564 F.Supp.2d 1067. Sentencing And Punishment k 2262


The statute authorizing modification of a sentence if a defendant was sentenced to
a term of imprisonment based on a sentencing guidelines range that had
subsequently been lowered by the Sentencing Commission, together with the
applicable policy statements issued by the Sentencing Commission, did not
authorize a modification of the defendant's 78-month sentence for conspiring to
distribute and possess with intent to distribute cocaine base, although the
guidelines had been amended to generally reduce the base offense levels applicable
to cocaine base offenses, since the amendment did not have the effect of lowering
the defendant's guidelines range, and her 78-month sentence was the minimum
sentence in the amended guidelines range. U.S. v. Cruz, E.D.N.Y.2008, 560
F.Supp.2d 198. Sentencing And Punishment k 2262


Because the sentencing amendments for offenses involving crack cocaine apply only
when a defendant was sentenced to a term of imprisonment based on a sentencing
range subsequently been lowered by the Sentencing Commission, a defendant who was
sentenced based on a statutory minimum, which has not been lowered, is ineligible
for such a sentence reduction. U.S. v. Ortiz, S.D.N.Y.2008, 551 F.Supp.2d 202.
Sentencing And Punishment k 2262


Defendant was not entitled to resentencing, under statute allowing court to reduce
a defendant's sentence if it was based upon sentencing range subsequently lowered
by amendment to Sentencing Guidelines and if reduction is consistent with policy
set forth in Guidelines, with respect to her convictions for conspiracy to
distribute five kilograms or more of cocaine and 50 grams or more of crack
cocaine, though amendment to Guidelines would lower her offense level so that
Guidelines range would be 70 to 87 months, where defendant was subject to
mandatory minimum ten-year sentence under statute of conviction, she did not
qualify for "safety valve" relief from mandatory minimum sentence, and government
had not moved for reduction of sentence. Varner v. U.S., D.S.C.2006, 413
F.Supp.2d 623. Sentencing And Punishment k 2262


Defendant convicted for importing and trafficking in heroin was not entitled to
modification of his sentence, which was increased under sentencing guideline
authorizing a four-level sentencing increase for defendant's role as an organizer
or leader, based on a subsequent amendment to the guideline; amendment clarified
that the increase was required when defendant was the organizer or leader of one
or more other participants in the criminal activity, and that the increase was
permitted when defendant was the organizer or leader of the activities or assets
of the criminal organization, and sentencing court expressly concluded that
defendant was an organizer or leader of at least five or more participants, so
that increase was mandatory. U.S. v. Enigwe, E.D.Pa.2005, 379 F.Supp.2d 724,
reconsideration dismissed 2006 WL 1340527, affirmed 181 Fed.Appx. 321, 2006 WL
1518970. Sentencing And Punishment k 2262


Defendants, convicted for conspiracy to distribute cocaine, and possession with
intent to distribute cocaine, were not entitled to sentencing reductions, under
post-sentencing amendment to the Sentencing Guidelines, providing that defendants
who received mitigating role adjustments in drug trafficking cases would be
limited to a base offense level of 30; amendment was not listed in the Guidelines
as one of the retroactive amendments, so that amendment would not apply
retroactively, defendants did not receive mitigating role decreases at sentencing,
and another Guidelines amendment, clarifying requirements for mitigating role
sentencing decrease was not listed as retroactive amendment, so that that
amendment would not apply retroactively either. U.S. v. Silva, S.D.N.Y.2004, 337
F.Supp.2d 573. Sentencing And Punishment k 664(4); Sentencing And Punishment
k 2262


Defendant's sentencing range was unaffected by deletion of "favorable light"
requirement from commentary to United States Sentencing Guideline (USSG) for
obstructing or impeding administration of justice, since prior version actually
burdened government with higher standard of proof and court found under that
higher standard of proof that defendant's litany of false statements in financial
disclosure submitted to probation officer during presentence investigation were
material and willfully made, and clearly reflected willful attempt to obstruct
justice. U.S. v. Abuhouran, E.D.Pa.2004, 330 F.Supp.2d 532. Sentencing And
Punishment k 2262


Defendant was not entitled to have consecutive sentence, imposed for second tax
evasion conspiracy conviction, changed to concurrent by virtue of amendment to
commentary to Sentencing Guideline governing cases of undischarged terms of
imprisonment that allowed downward departures in certain cases of discharged
terms; assuming amendment to commentary could be used to support sentence
modification, amendment was inapplicable since it concerned circumstance not
relevant to defendant, and statute under which defendant sought modification
applied only to named Guideline amendments that lowered sentencing ranges, which
did not include instant amendment. U.S. v. Balagula, E.D.N.Y.2003, 275 F.Supp.2d
307. Sentencing And Punishment k 577; Sentencing And Punishment k 660


Inmate claiming ineffective assistance of counsel based on his trial counsel's
failure to object to application of Sentencing Guidelines in light of Apprendi
failed to name an amendment to Sentencing Guidelines which had been applied
retroactively by the Sentencing Commission to the Guidelines under which he had
been sentenced, and thus statute permitting modification of an imposed term of
imprisonment was not applicable. U.S. v. Young, S.D.Miss.2001, 197 F.Supp.2d 576.

Sentencing And Punishment k 2262


Amendment to Sentencing Guidelines which defined term "cocaine base" to mean
"crack" did not materially change law, and thus did not provide basis for
reduction of term imposed following defendant's conviction for conspiracy to
possess and possession of cocaine base, which occurred prior to amendment;
amendment merely codified rule which was followed, in common-law form, by court at
time of sentencing. U.S. v. Nguyen, C.D.Cal.1998, 997 F.Supp. 1281. Sentencing
And Punishment k 2262


Life sentence in drug case, that was mandated by earlier Sentencing Guidelines,
was subject to modification. U.S. v. Coleman, W.D.Mo.1997, 958 F.Supp. 452.
Sentencing And Punishment k 2262


The defendant was not entitled to a reduction of his 151-month sentence for
distribution of crack cocaine based on an amendment to the sentencing guidelines
that decreased by two levels the base offense level assigned to quantities of
crack cocaine, because defendant's base offense level was set under the career
offender guideline, rather than the crack cocaine guideline. U.S. v. Taplin,
C.A.10 (N.M.) 2009, 309 Fed.Appx. 271, 2009 WL 222432, Unreported. Sentencing And
Punishment k 2262


Amendment to the Sentencing Guidelines addressing a defendant's role in the
offense was not among those listed in the Sentencing Guidelines as being
retroactively applicable, and thus, could not provide a basis for relief under the
statute conditionally providing for a sentence reduction in the case of sentences
based on subsequently lowered sentencing ranges. Clemons v. U.S., C.A.6 (Ohio)
2004, 102 Fed.Appx. 933, 2004 WL 1380067, Unreported, rehearing en banc denied.
Sentencing And Punishment k 664(5)


District court did not double count defendant's possession of firearm in
sentencing him for armed bank robbery and use of firearms in relation to crime of
violence, even though crimes shared common element, where court did not enhance
under guidelines sentence it imposed for armed robbery by reason of possession of
firearm. U.S. v. Acker, C.A.3 (Pa.) 2004, 86 Fed.Appx. 504, 2004 WL 115007,
Unreported. Sentencing And Punishment k 901


Defendant's claims that his plea agreement may have been breached by court's
decision to upwardly depart in arriving at his sentence and that court failed to
give notice of and justification for its upward departure were not cognizable in
motion seeking retroactive application of subsequently lowered sentencing range.
U.S. v. Sias, C.A.5 (La.) 2003, 81 Fed.Appx. 474, 2003 WL 22477875, Unreported.

Sentencing And Punishment k 2251


Subsequent amendment to Sentencing Guidelines, which lowered upper limit of drug
quantity table, did not modify table for quantity of at least 30 grams but less
than 100 grams of LSD, and thus, reduction of defendant's sentence was not
warranted, where his offense level based on 47.6 grams of LSD remained same
following amendment. U.S. v. Galazo, S.D.N.Y.2003, 2003 WL 22251331, Unreported.
Sentencing And Punishment k 2262


Defendant who received statutory minimum sentence for possession with intent to
distribute cocaine mixture was not eligible for modification of sentence based on
subsequent amendment of sentencing range applicable to his conviction under
Sentencing Guidelines. U.S. v. Martinez-Anaya, C.A.10 (N.M.) 2003, 75 Fed.Appx.
737, 2003 WL 22147620, Unreported. Sentencing And Punishment k 2262


Defendant did not receive sentencing enhancements that related to protected
locations or underage or pregnant individuals, and thus, amendment to Sentencing
Guidelines section relating to drug offenses occurring near protected locations or
involving underage or pregnant individuals was not retroactively applicable to
defendant on his motion to modify his sentence. Salcedo v. U.S., S.D.N.Y.2003,
2003 WL 22137983, Unreported. Sentencing And Punishment k 664(4)


Defendant was properly sentenced to 57 months' imprisonment following his
conviction by guilty plea to reentering United States illegally as a deported
alien who was previously convicted of an aggravated felony, even if Sentencing
Commission modified sentencing guidelines for aggravated-felony enhancement to
provide for increase of eight to sixteen levels according to seriousness of
earlier aggravated felony; district court applied then-existing version of
sentencing guidelines that called for 16-level increase for defendant previously
convicted of aggravated felony, and imposed sentence at low end of guideline range
based on defendant's criminal history and total offense level. U.S. v.
Chavarria-Ahumada, C.A.10 (N.M.) 2003, 73 Fed.Appx. 362, 2003 WL 21958332,
Unreported. Sentencing And Punishment k 664(1)


Post-sentencing amendment of sentencing guideline, reducing offense level for
narcotics defendant's crime, did not warrant resentencing; court would have
imposed same sentence even if offense level had been lower. Rivera v. U.S.,
S.D.N.Y.2003, 2003 WL 76988, Unreported. Sentencing And Punishment k 2262


4. Retroactive effect of guidelines

District court did not abuse its discretion in reducing sentence of defendant, who
was convicted of distributing crack, only three months, rather than the 15 months
defendant was eligible for under the sentencing guidelines, after the Sentencing
Commission retroactively reduced the offense levels for some crack offenses;
district court concluded, after reviewing defendant's presentence report and his
prison record, that he deserved no more than a 3-month reduction because his
criminal history and repeated serious driving offenses showed that he posed a risk
to the community, and regardless of whether the government thought defendant
should receive the entire reduction to which he was eligible, the district court
was not obligated to accept the government's recommendation. U.S. v. Johnson,
C.A.7 (Ill.) 2009, 580 F.3d 567. Sentencing And Punishment k 2325


In resentencing defendant based on Sentencing Commission's retroactive lowering of
Sentencing Guideline range for crack cocaine offenses, district court lacked
authority to impose sentence below minimum amended Guideline range; although
United States v. Booker made Guidelines advisory for full sentencings and full
resentencings, change did not alter mandatory character of Guideline policy
statement prohibiting any below-the-new-Guideline-minimum reduction in event of
modification based on amended Guideline range, since such modification did not
constitute full resentencing. U.S. v. Doublin, C.A.5 (La.) 2009, 572 F.3d 235,
certiorari denied 130 S.Ct. 517. Sentencing And Punishment k 2262


Defendants' applicable Guideline ranges for their convictions of conspiracy to
distribute and distribution of crack cocaine were subsumed by mandatory minimum
sentences, and were thus unaffected by retroactive guidelines amendment that
lowered base offense levels for most quantities of crack cocaine by two levels.
U.S. v. Doe, C.A.3 (Pa.) 2009, 564 F.3d 305, certiorari denied 130 S.Ct. 563.
Sentencing And Punishment k 2262


Defendant convicted of possession with intent to distribute crack cocaine, who was
reimprisoned after his term of supervised release was revoked, was not entitled to
modification of his sentence on ground that the Sentencing Commission reduced the
base-offense levels for crack-cocaine offenses under the Sentencing Guidelines and
made the changes retroactive; the Commission stated in application note to
Guideline that the Guideline amendment did not authorize a reduction in the term
of imprisonment imposed upon revocation of supervised release. U.S. v. Forman,
C.A.7 (Ill.) 2009, 553 F.3d 585, certiorari denied 129 S.Ct. 1924, 173 L.Ed.2d
1071, certiorari denied 129 S.Ct. 2817, 174 L.Ed.2d 310. Sentencing And
Punishment k 2262


Defendant's sentence for distributing five or more grams of cocaine base was not
based on sentencing range that was subsequently lowered by Sentencing Commission
when it lowered the base offense level for crack cocaine offenses by two levels,
and, thus, district court did not have jurisdiction to revisit defendant's
sentence under statute permitting court to modify a sentence "in the case of a
defendant who has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission;" although
district court initially calculated an otherwise applicable range that the
amendment lowered, a prior felony drug conviction subjected defendant to a
statutory minimum sentence, and the statutory minimum became defendant's
guidelines sentence. U.S. v. Poole, C.A.7 (Ill.) 2008, 550 F.3d 676.


U.S. v. Booker, which held that the Sentencing Guidelines were advisory, does not
apply to sentence modification proceedings under the statute providing for a
sentencing reduction when a sentencing range that has been lowered by the
Sentencing Commission following sentencing. U.S. v. Rhodes, C.A.10 (N.M.) 2008,
549 F.3d 833, certiorari denied 129 S.Ct. 2052, 173 L.Ed.2d 1136. Sentencing And
Punishment k 2262


Defendant was not entitled to a retroactive reduction of his sentence under
statutory subsection providing for modification of an imposed term of imprisonment
on the basis of Amendment 599 since it did not apply factually in defendant's
case; defendant's sentence imposed on the underlying offenses was not affected by
his possession of firearms, but rather the base offense level was adjusted upward
for defendant's aggravating role as an organizer, leader, manager or supervisor.
U.S. v. Armstrong, C.A.11 (Ala.) 2003, 347 F.3d 905. Sentencing And Punishment
k 2262


Amendment to Sentencing Guidelines section providing for sentencing enhancements
of varying levels depending on what type of aggravated felony defendant was
convicted of was not retroactively applicable to defendant convicted of reentering
the United States after having been previously deported, since amendment was not
listed in Sentencing Guidelines section naming Guideline Amendments that could be
applied retroactively. U.S. v. Chavez-Salais, C.A.10 (N.M.) 2003, 337 F.3d 1170.
Sentencing And Punishment k 664(5)


Amendment to sentencing guideline, which eliminated the 16-level increase in
offense level previously mandated for illegal reentry defendants with prior
aggravated felony convictions and substituted increase of from 8 to 16 levels
based on seriousness of prior aggravated felony, could not be applied
retroactively to defendant sentenced under the earlier law; retroactive
application of amendment in order to reduce defendant's sentence was not
consistent with applicable policy statements issued by the Sentencing Commission.
U.S. v. Torres-Aquino, C.A.10 (N.M.) 2003, 334 F.3d 939. Sentencing And
Punishment k 664(5)



Although Sentencing Commission changed the guidelines to preclude downward
departure in resentencing on grounds of extraordinary post-sentence
rehabilitation, change was prospective and did not apply to defendant who was
originally sentenced before the change. U.S. v. Maldonado, C.A.1 (R.I.) 2001, 242
F.3d 1. Sentencing And Punishment k 664(4)


Defendant's challenge to sentence was properly construed as claim under statute
governing motions to vacate unlawful sentence, rather than statute authorizing
modification of sentence based on sentencing range that has subsequently been
reduced by Sentencing Commission, where claim based on guideline involved
guideline that was not designated as retroactive, and remaining claims
collaterally attacked defendant's sentence. U.S. v. Perez, C.A.2 (N.Y.) 1997, 129
F.3d 255, certiorari denied 119 S.Ct. 384, 525 U.S. 953, 142 L.Ed.2d 318.
Criminal Law k 1576


District court abused its discretion in denying motion to modify sentence due to
retroactive amendment which altered previous Sentencing Guideline range without
indicating that it considered what would have been appropriate sentence under
retroactive amendment. U.S. v. Wyatt, C.A.8 (Mo.) 1997, 115 F.3d 606. Sentencing
And Punishment k 2312


Defendant sentenced for unarmed bank robbery was not entitled to reduced sentence
on ground that his sentence had been based on sentencing range that had
subsequently been lowered by Sentencing Commission; even though Commission had
changed definition of term "offense statutory maximum" and that change applied
retroactively, statutory maximum sentence for unarmed bank robbery was 20 years
both before and after amendment. U.S. v. Townsend, C.A.9 (Cal.) 1996, 98 F.3d 510
. Sentencing And Punishment k 2262


Defendants could not challenge sentences through collateral motion for
modification of sentence, on grounds that amendment to Sentencing Guidelines which
became effective after sentences were imposed had retroactive application; under
statute retroactive effect would be accorded only to amendments specifically
listed in Guidelines, and amendment in question was not so listed. U.S. v. Drath,
C.A.5 (Tex.) 1996, 89 F.3d 216. Sentencing And Punishment k 664(4)


District court lacked authority to give retroactive application to Sentencing
Guidelines amendment, which established additional one-level reduction in offense
level for acceptance of responsibility, where Sentencing Commission's policy
statement failed to list that amendment as among those that were retroactive.
U.S. v. Hernandez, C.A.8 (Minn.) 1994, 18 F.3d 601. Sentencing And Punishment
k 664(5)



Amendment to commentary of sentencing guideline arguably limiting underlying
conduct which sentencing court may examine in determining whether prior felony is
crime of violence for purposes of career offender sentencing was not designated,
at time of defendant's motion, as amendment that could be used retroactively to
lower defendant's sentence and, thus, statute permitting district court to reduce
term of imprisonment if sentencing range upon which term was based is subsequently
lowered by Sentencing Commission did not provide district court with jurisdiction
to lower defendant's sentence based on amended commentary, even though amendment
to Guidelines after motion was denied did designate amendment in question as one
that could be applied retroactively; post-motion amendment could not be
considered. U.S. v. Auman, C.A.8 (Minn.) 1993, 8 F.3d 1268. Sentencing And
Punishment k 1219; Sentencing And Punishment k 665


Amendment to sentencing guidelines provision to permit three-level, rather than
two-level, downward adjustment for acceptance of responsibility would not be
applied retroactively to defendant who had received two-level downward adjustment
when sentenced before amendment. U.S. v. Avila, C.A.10 (Colo.) 1993, 997 F.2d 767
. Sentencing And Punishment k 664(5)


Defendant was not entitled to be resentenced under amended sentencing guideline
for unlawfully distributing, importing, exporting, or possessing listed chemical,
which became effective after his initial sentencing; amendment was not listed
among those which were intended to be applied retroactively. U.S. v. Wilson,
C.A.8 (Ark.) 1993, 997 F.2d 429. Sentencing And Punishment k 664(4)


Statute, which prohibits modification of sentence once it has been imposed unless
offender shows unusual hardship, other statute expressly permits modification,
Court of Appeals finds sentence was unlawfully imposed, or Sentencing Commission
subsequently changes guidelines to reduce term of imprisonment, barred retroactive
application of amendment to career guideline, which required court to apply table
and then to determine whether offender qualified for acceptance of responsibility
adjustment, where Commission gave no authorization for applying amendment on
appeal. U.S. v. Havener, C.A.1 (Me.) 1990, 905 F.2d 3. Sentencing And Punishment
k 1219


Defendant was not eligible for a reduction of his sentence for unlawful possession
with intent to distribute crack cocaine on the basis of subsequent amendment to
the Sentencing Guidelines, which lowered base offense levels for crack cocaine
offenses by two levels and made those amendments retroactive, where his sentence
was not based on subsequently amended crack guidelines, but rather was based on
sentencing court's policy-based view of what pre-amendment crack guidelines should
have been. U.S. v. Garris, D.D.C.2008, 591 F.Supp.2d 54. Sentencing And
Punishment k 2262



A retroactive amendment to the sentencing guidelines that reduced the base offense
levels for crack cocaine offenses had the effect of lowering the defendant's
applicable guideline range in his sentencing for conspiracy to possess with intent
to distribute cocaine base, and thus, district court had jurisdiction to address
defendant's motion to modify his 240-month sentence; district court sentenced
defendant based on jury's finding that he conspired to possess more than 1.5
kilograms of cocaine base, which resulted in guidelines range of 235 to 293 months
at time of defendant's sentencing, but under amendment to guidelines, defendant's
guidelines range was 188 to 235 months based on that amount of cocaine base. U.S.
v. Tejeda, D.Mass.2008, 550 F.Supp.2d 204. Sentencing And Punishment k 2262


Lack of acceptance of responsibility by defendant who had been convicted of
conspiring to distribute crack cocaine and possession with intent to distribute
crack cocaine was not bar to reduction of his sentence pursuant to Sentencing
Commission's retroactive application of reduced crack cocaine guidelines. U.S. v.
Ayala, W.D.Va.2008, 540 F.Supp.2d 676. Sentencing And Punishment k 2262


Changes to the Sentencing Guidelines in the treatment of offenses involving crack
cocaine did not apply to reduce sentence of defendant, who was convicted of
offenses involving the possession and distribution of crack cocaine, where
defendant was sentenced as a career offender, and sentencing court did not grant a
downward departure in criminal history category. U.S. v. Rivera, E.D.Pa.2008, 535
F.Supp.2d 527. Sentencing And Punishment k 2262


Amendment to Sentencing Guidelines which reduced by two the offense level
applicable to most crack cocaine crimes did not have retroactive effect until date
set forth by the Sentencing Commission, and, thus, prior to that date, defendant
was not yet eligible for a reduction of sentence imposed upon his conviction of
conspiring to possess with intent to distribute crack cocaine and distribution of
crack cocaine, pursuant to statute providing for modification of an imposed term
of imprisonment based on a retroactive change in the Sentencing Guidelines. U.S.
v. Gagot, D.Mass.2008, 534 F.Supp.2d 212. Sentencing And Punishment k 664(5);
Sentencing And Punishment k 2262


Downward modification of defendant's sentence for conspiracy, money laundering and
intent to distribute marijuana and cocaine to term of imprisonment of 295 months
was warranted based upon amendment to Sentencing Guidelines concerning treatment
of marijuana plants which became effective following defendant's conviction and
sentencing for conspiracy, money laundering and intent to distribute marijuana and
cocaine, but was retroactively applicable; under amendment defendant's total
responsibility for 3,298.53 kilograms of marijuana would have been adjusted to
598.53 kilograms of marijuana, and his total offense level would have been 37 and
his guidelines range would have been 262-327 months, instead of 360--life. U.S.
v. Gilliam, W.D.Va.2007, 513 F.Supp.2d 594, affirmed 275 Fed.Appx. 214, 2008 WL
1859494. Sentencing And Punishment k 2262


Amendments to Sentencing Guidelines which were not listed in Sentencing
Commission's policy statement on retroactive application could not be applied
retroactively as basis for modification of sentence. U.S. v. Munoz, N.D.Ill.1997,
967 F.Supp. 1062. Sentencing And Punishment k 664(4)


Defendant was not entitled to correction of his sentence to allow three-level,
rather than two-level, decrease in offense level for acceptance of responsibility;
amendment, effective after defendant was sentenced, providing for three-level
reduction does not apply retroactively. Schneider v. U.S., E.D.N.Y.1993, 838
F.Supp. 709. Sentencing And Punishment k 664(5)


Amendment to Sentencing Guidelines that substantively changes Guidelines to reduce
sentences may only be applied retroactively if Sentencing Commission has allowed
its retroactive application. U.S. v. Torres-Gonzalez, D.Puerto Rico 1993, 834
F.Supp. 550. Sentencing And Punishment k 664(5)


Amendment to Sentencing Guidelines which allowed a three-point downward adjustment
for acceptance of responsibility for offense which defendant pled guilty to did
not apply retroactively; change in term of imprisonment was substantive change
and amendment was not listed in policy statement relating to retroactivity of
amended guideline range. U.S. v. Arana, D.Colo.1993, 826 F.Supp. 368. Sentencing
And Punishment k 664(5)


Sentencing Guideline amendment permitting three point, rather than two point,
reduction of offense level to reflect acceptance of responsibility could not be
applied retroactively to allow modification of defendant's sentence for bank
robbery. U.S. v. Pustol, E.D.Wash.1993, 812 F.Supp. 1092. Sentencing And
Punishment k 664(5)


Amendment to Sentencing Guidelines allowing three-level downward adjustment for
acceptance of responsibility, rather than two levels as previously, did not apply
retroactively to reduce sentence previously imposed, as amendment was not among
list of amendments in Sentencing Commission policy statement that are to be given
retroactive effect. U.S. v. Williams, M.D.N.C.1993, 812 F.Supp. 612. Sentencing
And Punishment k 664(5)


Amended version of Sentencing Guideline for acceptance of responsibility is not
retroactive. U.S. v. Heard, N.D.Ill.1993, 810 F.Supp. 242. Sentencing And
Punishment k 664(4)


Sentencing Guideline policy statement enumerating those amendments which are not
prospective only is controlling on motion to reduce sentence because of subsequent
amendment of Guidelines, in light of explicit unusual power conferred on the
Sentencing Commission by statute to determine retroactivity. U.S. v. Rios-Paz,
E.D.N.Y.1992, 808 F.Supp. 206. Sentencing And Punishment k 2241


Defendant's sentence for failing to file currency report when knowingly
transporting monetary instruments in excess of $10,000 would be reduced from 66
months to 41 months' imprisonment pursuant to postsentencing guidelines amendment;
amendment imposed clear and more sensible standard regarding treatment given
defendant's knowledge that funds she was carrying were derived criminally or were
to be used for criminal activity and amendment was specifically designed as one
subject to retroactive application. Rodriguez-Alonso v. U.S., E.D.N.Y.1992, 807
F.Supp. 21. Sentencing And Punishment k 664(5)


Even if amendment to Sentencing Guidelines providing for offense level reduction
in sentencing for offense of escape if defendant escaped from nonsecure custody
was applicable to inmate who escaped from federal prison camp, court would decline
to retroactively apply amendment to defendant's case where it was convinced that
initial sentence received was appropriate. U.S. v. Kahn, M.D.Ala.1992, 789
F.Supp. 373. Sentencing And Punishment k 664(5)


Defendant, who was convicted of crimes committed before effective date of
Sentencing Act of 1987 and who was, thus, sentenced under preguideline law, was
not entitled to modification of his sentence in light of purportedly lower
sentencing range contained in new sentencing guidelines; sentencing guidelines
did not apply retroactively. U.S. v. Abbenante, D.R.I.1988, 681 F.Supp. 126.
Sentencing And Punishment k 664(2)


Booker rule generally requiring that facts supporting enhanced sentence be proved
to jury or admitted by defendant did not apply retroactively to cases on
collateral review, and thus did not support sentence reduction requested pursuant
to statute authorizing court to modify sentence based on subsequent lowering of
Sentencing Guidelines range. U.S. v. Mitchell, C.A.2 (N.Y.) 2005, 122 Fed.Appx.
539, 2005 WL 387974, Unreported, certiorari denied 126 S.Ct. 1449, 546 U.S. 1222,
164 L.Ed.2d 147. Courts k 100(1); Sentencing And Punishment k 2262


Defendant could not challenge his sentence through collateral motion for
modification of sentence on ground that amendment to Sentencing Guidelines that
became effective after sentences were imposed had retroactive application, where
amendment was not specifically listed in Guidelines. U.S. v. Sias, C.A.5 (La.)
2003, 81 Fed.Appx. 474, 2003 WL 22477875, Unreported. Sentencing And Punishment
k 2262


Amendment not listed in Sentencing Guidelines policy statement on reduction in
term of imprisonment as a result of amended guideline range was not retroactive,
and thus, the district court lacked the authority to reduce defendant's sentence
under the amendment. U.S. v. Tobar, C.A.1 (Puerto Rico) 2003, 73 Fed.Appx. 471,
2003 WL 22053373, Unreported. Sentencing And Punishment k 664(5); Sentencing
And Punishment k 2262


Statute conferring upon a sentencing court discretionary authority to shorten a
term of imprisonment if subsequent amendments to Sentencing Guidelines lowered
relevant sentencing range, so long as reducing sentence would be consistent with
policies of the Sentencing Commission, did not authorize District Court to reduce
defendant's sentence as a career offender, upon his conviction of drug offense,
since amendment serving as basis for defendant's claim was not retroactively
applicable. Belton v. U.S., C.A.7 (Wis.) 2003, 71 Fed.Appx. 582, 2003 WL 21772149
, Unreported. Sentencing And Punishment k 664(5)


Amendments to Sentencing Guidelines that were not included in list of amendments
which could be applied retroactively to reduce term of imprisonment, consistent
with Sentencing Commission's policy statement, could not be applied retroactively
to reduce defendant's sentence pursuant to statute conditioning retroactivity on
reduction's consistency with Commission's policy statements. U.S. v. Gill, C.A.3
(Virgin Islands) 2003, 68 Fed.Appx. 354, 2003 WL 21467247, Unreported. Sentencing
And Punishment k 664(4)


Amendment to sentencing guideline provision authorizing reduction for diminished
capacity did not apply retroactively. Edwards v. U.S., C.A.8 (Ark.) 2000, 221
F.3d 1342, 2000 WL 949179, Unreported. Sentencing And Punishment k 664(5)


5. Discretion of court

Denial of defendant's motion to reduce sentence for possession with intent to
distribute fifty grams or more of cocaine base under Sentencing Guidelines
amendment lowering base offense levels applicable to crack cocaine offenses was
reasonable exercise of district court's discretion, although court did not address
every statutory factor; district court observed that defendant never accepted
responsibility for multiple offenses for which he was convicted, considered
severity of defendant's original crimes, noted several incidents in prison
involving violence and attempted importing of narcotics, viewed defendant's
educational and legal work while in prison as evidence of rehabilitation, and
concluded that such considerations could not overcome potential danger to
community if defendant was released at that time. U.S. v. Lafayette,
C.A.D.C.2009, 585 F.3d 435.


Sentencing court did not abuse its discretion by declining to reduce 96-month
prison sentence imposed for conspiracy to distribute and possess with intent to
distribute crack cocaine and possession with intent to distribute the same,
despite retroactive amendment to Sentencing Guidelines lowering base offense level
for crack cocaine offenses, which resulted in revised Guidelines range of 63 to 78
months' imprisonment; defendant had an extensive criminal history, and the longer
sentence was necessary to protect society. U.S. v. Borden, C.A.2 (N.Y.) 2009, 564
F.3d 100. Sentencing And Punishment k 2325


In resentencing defendants based on retroactive amendment to crack cocaine
sentencing guidelines, district court lacked authority to impose sentences below
minimum amended guideline range; policy statements in statute authorizing sentence
reduction provided that proceedings under statute did not constitute full
resentencing of defendants, and that courts could not reduce defendants' term of
imprisonment below amended guideline range. U.S. v. Cunningham, C.A.7 (Ill.)
2009, 554 F.3d 703, certiorari denied 129 S.Ct. 2826, 174 L.Ed.2d 552, certiorari
denied 129 S.Ct. 2840. Sentencing And Punishment k 2329


Defendant's intentional assertion before sentencing court, that length of her
sentence for guilty plea to one count of bank robbery should be informed by amount
of time necessary for her to receive sufficient rehabilitation services, waived
her appellate argument that court's adoption of rehabilitation rationale in
imposing 77 months of incarceration violated statute requiring court to recognize
that imprisonment was not appropriate means of promoting correction and
rehabilitation, since court had merely adopted defendant's rehabilitation
rationale but only differed regarding length of time required to accomplish her
rehabilitation. U.S. v. Walker, C.A.1 (R.I.) 2008, 538 F.3d 21. Criminal Law
k 1137(8)


Bureau of Prisons (BOP) policy statement which provides that the BOP may make a
nunc pro tunc designation of a state facility for service of a federal sentence
does not conflict with limitations on the authority of the federal courts to
modify a sentence once it has been imposed, and does not expand a court's power to
enter orders affecting a sentence after its imposition, but merely defines what
the BOP can do if such an order is entered. Taylor v. Sawyer, C.A.9 (Or.) 2002,
284 F.3d 1143, certiorari denied 123 S.Ct. 889, 537 U.S. 1119, 154 L.Ed.2d 799.
Prisons k 214



Sentencing court's power to reduce sentence based on subsequent change in
applicable guideline range is unambiguously discretionary. U.S. v. Vautier,
C.A.11 (Fla.) 1998, 144 F.3d 756, rehearing en banc denied , certiorari denied 119
S.Ct. 888, 525 U.S. 1113, 142 L.Ed.2d 786. Sentencing And Punishment k 2232


Statute governing imposition of prison sentence gives a court the power to modify
a term of imprisonment after it has been imposed only if (1) director of Bureau of
Prisons files motion seeking reduction, (2) government files motion under rule
governing correction or reduction of sentence, (3) statute expressly permits
reduction, or (4) Sentencing Commission subsequently lowers the applicable
sentencing range. Walters v. U.S., S.D.W.Va.2006, 495 F.Supp.2d 577, affirmed 213
Fed.Appx. 190, 2007 WL 136694. Sentencing And Punishment k 2250


Although defendant was eligible, under statute authorizing sentence reduction if a
defendant was sentenced based on sentencing range that was subsequently lowered by
Sentencing Commission, for reduction of his 144-month sentence for possession with
intent to distribute crack cocaine and carrying firearm during drug trafficking
crime, nature and circumstances of offense, defendant's history of violence, and
policy behind guidelines amendment militated against sentence reduction, and thus,
district court would decline to grant reduction; defendant wore bullet-resistant
vest and carried loaded gun at time of arrest, and 24.49 grams of crack and
ammunition for various guns was in his car, and his history revealed proclivity
toward violence, and after sentencing, he was arrested and convicted for murder.
U.S. v. Martin, E.D.Pa.2009, 602 F.Supp.2d 611.


District court has authority to modify valid sentence only if such authority is
conferred by federal statute. Morales v. U.S., D.Mass.2005, 353 F.Supp.2d 204.
Sentencing And Punishment k 2229


6. Reduction of imprisonment term

While district court had discretion, following amendment of sentencing guidelines
to reduce guidelines range for defendant's crack cocaine offense, to reduce
defendant's sentence, even though, based in part on substantial assistance that
defendant had provided to government, the sentence originally imposed was below
the low end of both the original and the amended guidelines range, it was not
compelled to do so, and absent any evidence in record that it misapprehended its
authority, the mere fact that it denied defendant's motion for further reduction
did not demonstrate any abuse of discretion. U.S. v. Cooley, C.A.5 (La.) 2009,
2009 WL 4642610. Sentencing And Punishment k 2262


The mere fact that the district court considered the difference between the crack
cocaine Sentencing Guidelines ranges and the career offender Guidelines ranges in
sentencing defendants under the career offender Guideline ranges was insufficient
to make defendants' sentences "based on" the crack cocaine Guidelines ranges, so
as to make defendants eligible for sentence reductions based on the Guidelines
amendment addressing the sentencing disparity between crack cocaine and powder
cocaine. U.S. v. Tupuola, C.A.9 (Hawai'i) 2009, 587 F.3d 1025. Sentencing And
Punishment k 2262


Defendant who was sentenced as a career offender for his offenses of distributing
a substance containing cocaine base was not eligible for sentence reduction under
statute authorizing modification of a sentence if the defendant was sentenced
based on a sentencing range that was subsequently lowered by the Sentencing
Commission, even though sentencing range for crack offense had been reduced;
career offender guideline provided the applicable guideline range for defendant.
U.S. v. Blackmon, C.A.8 (Mo.) 2009, 584 F.3d 1115. Sentencing And Punishment k
2262


In denying defendant's motion for sentence reduction based on amendment to the
Sentencing Guidelines for most crack cocaine offenses, the district court did not
abuse its discretion by failing to explicitly state what sentence it would have
imposed had the amendment been in effect when defendant was originally sentenced,
since it made clear why it believed original sentence continued to be appropriate,
even in light of amendment; court emphasized defendant's extensive criminal
history, and original sentence was product of negotiation in which government
agreed not to seek the career offender mandatory minimum. U.S. v. Curry, C.A.8
(Mo.) 2009, 584 F.3d 1102. Sentencing And Punishment k 2313



District court lacked authority, in sentence modification proceedings following
amendment of cocaine base Sentencing Guidelines, to impose a reduction below the
amended Guidelines range to an amount that was not comparable to the reduction
from the original Guidelines range. U.S. v. Higgins, C.A.8 (Neb.) 2009, 584 F.3d
770. Sentencing And Punishment k 2328



Defendant convicted of distributing cocaine base who was serving sentence
following revocation of supervised release was not eligible for sentence reduction
following Sentencing Commission's two-level reduction in base offense level for
offenses involving cocaine base; defendant was serving a sentence based on his
noncompliance with terms of his supervised release, not based on the drug quantity
table in the Sentencing Guidelines. U.S. v. Fontenot, C.A.10 (Colo.) 2009, 583
F.3d 743. Sentencing And Punishment k 2262


Defendant's 108-month prison sentence for guilty-plea conviction of drug
conspiracy and possession with intent to distribute cocaine did not warrant
sentencing reduction pursuant to retroactive amendment lowering base offense level
for crimes involving crack cocaine, where defendant stipulated to possession with
intent to distribute powder rather than crack cocaine. U.S. v. Torres-Oliveras,
C.A.1 (Puerto Rico) 2009, 583 F.3d 37. Sentencing And Punishment k 2262


District court did not abuse its discretion in appointing counsel, in deciding
defendant's pro se motion for a sentence reduction based on a sentencing range
that had subsequently been lowered by the Sentencing Commission, only after
initially deciding that defendant, who was eligible for a 15-month reduction,
would only receive a three-month reduction; defendant did not even ask that
counsel be appointed when he filed his pro se motion, and by sua sponte involving
the public defender's office after announcing its preliminary decision, the court
rectified any disadvantage to defendant. U.S. v. Johnson, C.A.7 (Ill.) 2009, 580
F.3d 567. Sentencing And Punishment k 2273


Defendant who was subject to mandatory minimum term of 120 months' imprisonment
for possession of cocaine base with intent to distribute was not entitled to
reduction in sentence following amendment to crack cocaine Sentencing Guideline,
even though district court waived mandatory minimum sentence and imposed sentence
of 90 months' imprisonment based on defendant's substantial assistance in
prosecuting other offenders, where defendant's sentence was based on mandatory
minimum sentence, rather than Sentencing Guidelines. U.S. v. Jackson, C.A.9
(Mont.) 2009, 577 F.3d 1032. Sentencing And Punishment k 2262


In resentencing the defendant after granting his motion for reduction of his
360-month sentence for crack cocaine offenses under the statute authorizing
sentence reduction in the case of a defendant who was sentenced to a term of
imprisonment based on a sentencing range that was subsequently lowered by the
Sentencing Commission, the district court was bound by the sentencing guidelines
policy statement limiting the reduction of a sentence based on a guidelines
amendment to the modified guideline range, and thus, the court was not authorized
to reduce the defendant's sentence below the bottom of the modified guidelines
range applicable to his offenses following the guidelines amendment reducing base
offense levels for crack cocaine offenses. U.S. v. Williams, C.A.10 (Colo.) 2009,
575 F.3d 1075, petition for certiorari filed 2009 WL 3753414. Sentencing And
Punishment k 2328


Sentencing Guidelines amendment which reduced the base offense level for offenses
involving crack cocaine was inapplicable to defendant who had been convicted of,
inter alia, possession of cocaine base with intent to distribute, and thus
district court lacked authority to reduce his sentence; sentencing range
applicable to defendant would have been the same even if the amendment had been in
place at time of his sentencing, since the combined offense level for his offenses
would have remained the same, and modification of defendant's sentence would have
been inconsistent with the Sentencing Commission's policy statement, since the
amendment did not lower his applicable Guidelines range. U.S. v. Leniear, C.A.9
(Alaska) 2009, 574 F.3d 668. Sentencing And Punishment k 2262


Defendant was no longer serving his sentence for crack cocaine conspiracy, and
thus was not eligible for a sentence reduction following amendments to the
Sentencing Guidelines range for crack cocaine offenses; defendant was serving his
sentence for his crack cocaine conviction at the time he was sentenced for his
marijuana and money laundering convictions and two sentences were not melded into
single, aggregate term of imprisonment. U.S. v. Gamble, C.A.8 (Ark.) 2009, 572
F.3d 472, rehearing and rehearing en banc denied , certiorari denied 2009 WL
3731895. Sentencing And Punishment k 2262


The defendant's 151-month sentence for possessing crack cocaine with intent to
distribute was not based on a sentencing range that was subsequently lowered by a
sentencing guidelines amendment that lowered offense levels for crack cocaine
offenses, so as to make the defendant eligible for a sentence reduction under the
statute authorizing sentence reduction in the case of a defendant who was
sentenced to a term of imprisonment based on a sentencing range that was
subsequently lowered by the Sentencing Commission, because the defendant's
guidelines range was based on the guidelines' career offender provision, rather
than on the guidelines for crack cocaine offenses. U.S. v. Perdue, C.A.6 (Ohio)
2009, 572 F.3d 288, rehearing and rehearing en banc denied , petition for
certiorari filed 2009 WL 5146633. Sentencing And Punishment k 2262


Alleged miscalculation, in defendant's original sentencing, of relevant conduct of
4,536 grams of crack cocaine, which exceeded 4.5 kilogram limit for eligibility
for retroactive reduction in base offense level, was not "clerical error," which
district court would have had authority to correct at any time, and thus,
defendant's motion for retroactive reduction was improper collateral attack on his
sentence; nothing in the record indicated that the relevant conduct finding was
added to overall sentencing calculation without district court's knowledge or
approval. U.S. v. Johnson, C.A.7 (Ill.) 2009, 571 F.3d 716. Sentencing And
Punishment k 2252


Sentencing Guidelines amendment which reduced the base offense level for offenses
involving crack cocaine was inapplicable to defendant who had been convicted of,
inter alia, possession of cocaine base with intent to distribute, and thus
district court lacked authority to reduce his sentence; sentencing range
applicable to defendant would have been the same even if the amendment had been in
place at time of his sentencing, since the combined offense level for his offenses
would have remained the same, and modification of defendant's sentence would have
been inconsistent with the Sentencing Commission's policy statement, since the
amendment did not lower his applicable Guidelines range. U.S. v. Leniear, C.A.9
(Alaska) 2009, 568 F.3d 779, withdrawn from bound volume , amended and superseded
574 F.3d 668. Sentencing And Punishment k 2262


District court lacked the authority, when reducing a sentence pursuant to
authorizing sentence reduction based on a sentencing range that has subsequently
been lowered by the Sentencing Commission, to reduce that sentence below the
amended Guidelines range, where the original sentence fell within the applicable
pre-amendment Guidelines range. U.S. v. Savoy, C.A.2 (N.Y.) 2009, 567 F.3d 71,
certiorari denied 130 S.Ct. 342, 175 L.Ed.2d 246. Sentencing And Punishment k
2262


Under the statute authorizing the district court to reduce a sentence that was
based on a sentencing range that had subsequently been lowered by the Sentencing
Commission, the defendant was ineligible for a reduction of his 120-month sentence
for conspiracy to distribute 50 grams or more of crack cocaine, despite an
amendment to the sentencing guidelines that reduced the offense levels for crack
cocaine offenses, since the defendant's sentence was based not on the applicable
sentencing guidelines range, but on a binding plea agreement, accepted by the
district court, in which the parties agreed to the imposition of a 120-month
sentence. U.S. v. Sanchez, C.A.3 (Pa.) 2009, 562 F.3d 275, certiorari denied 2010
WL 58481. Sentencing And Punishment k 2262


District court lacked authority, in sentence modification proceedings following
amendment of cocaine base Sentencing Guidelines, to impose sentence that fell
below the amended Guideline range, given binding policy statement by Sentencing
Commission. U.S. v. Starks, C.A.8 (Neb.) 2009, 551 F.3d 839, certiorari denied
129 S.Ct. 2746, 174 L.Ed.2d 257. Sentencing And Punishment k 2325


At resentencing following lowering of sentencing range by Sentencing Commission,
the district court lacked power to reduce the defendant's possession of cocaine
sentence below the amended guideline range; version of guideline available at time
of original sentence related to resentencing following lowering of range by
commission said court should consider term of imprisonment it would have imposed
had amendment to guideline been in effect at time defendant was sentenced, which
only authorized substitution of former guideline range with amended guideline
range. U.S. v. Pedraza, C.A.10 (N.M.) 2008, 550 F.3d 1218, certiorari denied 129
S.Ct. 2406, 173 L.Ed.2d 1313. Sentencing And Punishment k 2262


Booker decision, which severed the portions of the United States Sentencing
Guidelines that made them mandatory, did not support sentence reduction requested
pursuant to statute authorizing court to modify sentence based on subsequent
lowering of Sentencing Guidelines range by Sentencing Commission, since any
lowering of the sentencing range that may have resulted was done by the Supreme
Court, not the Sentencing Commission. U.S. v. Price, C.A.10 (Okla.) 2006, 438
F.3d 1005, as amended , certiorari denied 126 S.Ct. 2365, 547 U.S. 1185, 165
L.Ed.2d 289. Sentencing And Punishment k 2262


Motion for "reduction of sentence" that sought kind of relief covered by motions
to vacate, correct, or set aside was, in substance, a second collateral attack on
conviction, and thus should have been dismissed as such in absence of permission
to file second attack from Court of Appeals. U.S. v. Lloyd, C.A.7 (Ill.) 2005,
398 F.3d 978. Criminal Law k 1668(3)


Federal defendant convicted of possessing cocaine base with intent to distribute
was entitled to hearing on his motion to modify sentence, which sought to exclude
from sentencing calculation weight of mannitol with which cocaine base had been
combined; defendant contended that mannitol when burned would melt and prevent
cocaine base from vaporizing, and thus that mannitol failed Sentencing Guidelines'
usability criterion for includible cutting agents, and government submitted no
evidence to refute that assertion, and therefore defendant satisfied "reasonably
in dispute" requirement for hearing. U.S. v. Byfield, C.A.D.C.2004, 391 F.3d 277,
364 U.S.App.D.C. 28. Sentencing And Punishment k 2305


Record did not support district court's finding that it would have been impossible
to estimate dry weight of wet marijuana, for purposes of subsequently enacted
Sentencing Guidelines which established initial rule excluding nonuseable
materials from drug weight, and thus, district court should not have denied
defendant's motion for reduction of sentence on that ground, although actual
marijuana was not available to weigh, where there were witnesses who could testify
concerning degree of weight reduction that drying entailed. U.S. v. Carter,
C.A.11 (Ga.) 1997, 110 F.3d 759. Sentencing And Punishment k 2262


Court's power to reduce sentences is discretionary under statute providing that,
in case of defendant who has been sentenced to term based on sentencing range that
has subsequently been lowered by Sentencing Commission, court may reduce term,
after considering factors set forth in "safety valve" statute. U.S. v. Cothran,
C.A.11 (Ga.) 1997, 106 F.3d 1560. Sentencing And Punishment k 2262


District court had discretion to reduce defendant's sentence that was imposed
pursuant to revocation of supervised release, under statute granting court
discretion to modify previously imposed term of imprisonment when sentencing range
is subsequently lowered by sentencing commission; range for defendant's underlying
offense of conspiracy to manufacture and distribute marijuana was significantly
lowered, sentence upon revocation of supervised release was part of sentence for
underlying offense, and court retained broad sentencing discretion despite
existence of Sentencing Guidelines. U.S. v. Etherton, C.A.9 (Or.) 1996, 101 F.3d
80. Sentencing And Punishment k 2262


Amended Sentencing Guideline providing that only actual weight of controlled
substance is applied in calculating base offense level, not aggregate weight of
any mixture containing material that must be separated before controlled substance
is consumed, applied to defendant whose sentence was based on 9,892 grams of
material, only 5.96 grams of which were methamphetamine; thus, because
defendant's sentence under amended guideline would be not be greater than original
sentence, he was entitled to benefit of amended guideline pursuant to statute
authorizing district court to reduce sentence when guideline range applicable to
defendant has been lowered by retroactive amendment. U.S. v. Levay, C.A.5 (Tex.)
1996, 76 F.3d 671. Sentencing And Punishment k 2262


Denial of motion to reduce sentence of defendant, who had been sentenced to term
of imprisonment based on sentencing range that had subsequently been lowered, was
an abuse of discretion, where district court relied on testimony from another
proceeding in deciding whether to resentence but failed to give defendant timely
advance notice of its decision to use that testimony. U.S. v. Townsend, C.A.5
(Tex.) 1995, 55 F.3d 168. Sentencing And Punishment k 2292


Defendant's motion for reduction of sentence was unauthorized and without
jurisdictional basis, and was ineffective to enlarge time for seeking appellate
review of sentence, as motion was not made by government, it did not request
correction of sentence, it was not accompanied by notice of appeal from judgment
of conviction, and it did not relate to postsentencing lowering of Sentencing
Guidelines range. U.S. v. Early, C.A.5 (La.) 1994, 27 F.3d 140, certiorari denied
115 S.Ct. 600, 513 U.S. 1027, 130 L.Ed.2d 511. Sentencing And Punishment k
2277; Criminal Law k 1069(1)


Defendant was not eligible for early release from prison based on alleged
rehabilitation during incarceration. Pak v. U.S., D.Conn.2003, 2003 WL 21488196,
amended and superseded 278 F.Supp.2d 263. Prisons k 15(3)


Although, following amendment to sentencing guidelines providing for a two level
reduction in the base offense level for crack cocaine offenses, defendant's
amended sentencing range for possession with intent to distribute 50 grams or more
of cocaine base was 97 to 121 months, court could not reduce defendant's sentence
below mandatory statutory minimum sentence of 120 months. U.S. v. Dunn,
D.D.C.2009, 2009 WL 3805589. Sentencing And Punishment k 2262


Defendant whose sentence for possession of cocaine base with intent to distribute
was based on career offender status was not eligible for reduction in sentence
under amended sentencing guidelines that reduced base offense levels for crack
cocaine offenses, regardless that sentence imposed was downward departure from
guideline sentence. U.S. v. LaBoy, D.Mass.2009, 2009 WL 2985715. Sentencing And
Punishment k 2262


Defendant was entitled to reduction of his sentence, from 264 months in prison to
240 months, pursuant to amendments to Sentencing Guidelines for drug offenses;
although defendant had history of convictions and post-sentencing disciplinary
infractions, the most serious infractions occurred more than 6 years before motion
for reduction, defendant had participated in general educational development (GED)
classes and other educational programs and various health-related community
activities, and defendant had maintained good work evaluations while employed in
his work detail assignments. U.S. v. Branch, D.D.C.2009, 653 F.Supp.2d 112.
Sentencing And Punishment k 2328


Defendant's sentencing guidelines offense level of 35 for conspiracy to distribute
and possession with intent to distribute cocaine and crack cocaine and firearm
offense was reduced by one, rather than two levels by guidelines amendment that
reduced by two levels the combined offense levels in cases involving crack cocaine
and another controlled substance, and thus, under statute authorizing sentence
reduction for defendant who was sentenced to term of imprisonment based on
sentencing range that was subsequently lowered, defendant's recalculated offense
level for resentencing purposes was 34, rather than 33, since, when defendant's
combined controlled substance offense level was reduced to 33 by amendment, he
became subject to sentencing under his career-offender offense level of 34. U.S.
v. Davis, D.N.J.2009, 648 F.Supp.2d 656. Sentencing And Punishment k 2325


Taking into account the statutory sentencing factors, a 150-month sentence, at top
of amended sentencing guidelines range, was appropriate, upon the granting of
defendant's motion, pursuant to statute authorizing sentence reduction in the case
of a defendant who was sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by Sentencing Commission, for reduction of his
175-month sentence for possession with intent to distribute five grams or more of
cocaine base; although a reduction was warranted by guidelines amendment reducing
offense levels for crack cocaine offenses, defendant's prior criminal record
indicated that a sentence at top of guidelines range was appropriate to protect
society from defendant's future crimes. U.S. v. Garcia, D.D.C.2009, 640 F.Supp.2d
25. Sentencing And Punishment k 2328



District court could not reduce sentence of defendant convicted of offenses
related to drug distribution and money laundering conspiracies, even though he was
serving extremely lengthy sentence of 405 months, given that grounds allowing for
relief under statute governing modification of prison sentence did not exist.
Walters v. U.S., S.D.W.Va.2006, 495 F.Supp.2d 577, affirmed 213 Fed.Appx. 190,
2007 WL 136694. Sentencing And Punishment k 2250


Defendant convicted of crack cocaine offenses was not eligible for a sentence
reduction below the minimum amended Guidelines range following application of the
amendment to the Sentencing Guidelines lowering the base offense levels
corresponding to crack cocaine quantity ranges. Mock v. U.S., S.D.N.Y.2009, 632
F.Supp.2d 323. Sentencing And Punishment k 2262


Under the statute authorizing modification of an imposed term of imprisonment, the
district court was not authorized to reduce defendant's life sentence for
distribution of and possession with intent to distribute crack cocaine based on
defendant's post-conviction behavior. Bowman v. U.S., S.D.N.Y.2009, 629 F.Supp.2d
318. Sentencing And Punishment k 2263


The defendant's 188-month sentence for distribution of and possession with intent
to distribute cocaine base was not based on a sentencing range that was
subsequently lowered by a sentencing guidelines amendment that lowered offense
levels for crack cocaine offenses, so as to make the defendant eligible for a
sentence reduction under the statute authorizing sentence reduction in the case of
a defendant who was sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by the Sentencing Commission, because the
defendant's guidelines range was based on the guidelines' career offender
provision, rather than on the guidelines for crack cocaine offenses. U.S. v.
Hargrove, D.Mass.2009, 628 F.Supp.2d 241. Sentencing And Punishment k 2262


Under statute authorizing sentence reduction in case of a defendant who was
sentenced to term of imprisonment based on sentencing range that was subsequently
lowered by Sentencing Commission, defendant was eligible for reduction of his
100-month sentence for conspiracy to distribute crack cocaine, based on sentencing
guidelines amendment that reduced base offense levels for crack cocaine offenses,
even though defendant's status as career offender under guidelines increased his
offense level beyond level applicable based on amount of crack cocaine involved in
his offense, since district court at his original sentencing departed downward
from career offender offense level and sentenced him based on subsequently amended
offense level that applied based on crack cocaine quantity. U.S. v. Menafee,
D.Conn.2009, 626 F.Supp.2d 270. Sentencing And Punishment k 2262



The statute authorizing sentence reduction in the case of a defendant who was
sentenced to a term of imprisonment based on a sentencing range that was
subsequently lowered by the Sentencing Commission did not authorize the District
Court to reduce the defendant's 120-month sentence for possession with intent to
distribute cocaine base, based on an amendment to the sentencing guidelines that
reduced the base offense levels for certain crack cocaine offenses, since
defendant's original 240-month sentence, which had been subsequently reduced to
120 months upon the government's motion for sentence reduction, was based not on a
sentencing guidelines term, but on the statutory mandatory minimum sentence of 240
months. U.S. v. Joiner, W.D.La.2008, 614 F.Supp.2d 742. Sentencing And
Punishment k 2262


Defendant, convicted of conspiracy to distribute and possess with intent to
distribute crack cocaine, was not eligible for reduction of sentence pursuant to
Sentencing Guidelines Amendment lowering base offense levels applicable to crack
cocaine offenses, where the Guidelines range under which he was initially
sentenced was calculated under the career offender guideline rather than the crack
cocaine guideline and there was no downward departure under the Guidelines down to
the crack Guidelines range; sentence was not based on or otherwise tied to the
crack cocaine Guidelines. U.S. v. Smith, S.D.N.Y.2009, 614 F.Supp.2d 433.
Sentencing And Punishment k 2262


District court could not grant defendant's motion seeking compassionate relief
from her 120-month prison sentence, based on her family members' suffering due to
her incarceration, when director of Bureau of Prisons (BOP) had not filed
requisite motion for sentence modification on defendant's behalf. U.S. v. Thomas,
D.Puerto Rico 2007, 570 F.Supp.2d 202. Sentencing And Punishment k 2276


Defendant who pled guilty to conspiracy to possess with intent to distribute
cocaine base was not entitled to a reduction in his sentence based on the lowered
base offense levels for crack cocaine offenses set forth in a retroactive
amendment to the sentencing guidelines, despite his claim that, because his
sentence was consistent with the pre-amendment guideline range, it was in fact a
guideline sentence notwithstanding his plea agreement; although the sentencing
guidelines may have influenced the stipulated sentence set forth in the plea
agreement, defendant's sentence rested squarely on the parties' agreement and not
on a calculation under a sentencing guideline range that was subsequently lowered.
U.S. v. Grigsby, D.Colo.2008, 560 F.Supp.2d 1066. Sentencing And Punishment k
2262


Defendant convicted of conspiracy to distribute crack and powder cocaine and
sentenced as career offender to 188 months in prison was not entitled to
sentencing reduction based on Sentencing Guidelines amendments providing lower
sentencing ranges for crack cocaine offenses, where he was not ultimately
sentenced under the crack cocaine guideline, but under the career offender
guideline. U.S. v. Biami, E.D.Wis.2008, 548 F.Supp.2d 661. Sentencing And
Punishment k 2262


Reduction of defendant's sentence for cocaine base offenses from 121 months
imprisonment to 120 months imprisonment was warranted based on amendment to
Sentencing Guidelines which reduced the base offense level for cocaine base
offenses by two levels; defendant had been originally sentenced at low end of
Guidelines range, and lower end of the new Guidelines range was 120 months, since
both counts of conviction carried statutory mandatory minimum sentences of ten
years imprisonment. U.S. v. Desire, M.D.Fla.2008, 546 F.Supp.2d 1308. Sentencing
And Punishment k 2262; Sentencing And Punishment k 2328


Recent amendment to the Sentencing Guidelines that generally adjusted downward by
two levels the base offense level assigned to quantities of cocaine base did not
warrant reduction of defendant's sentence for trafficking in cocaine, since
defendant was sentenced under the cocaine or cocaine hydrochloride ranges of the
Guidelines. U.S. v. Byrns, D.Kan.2008, 546 F.Supp.2d 1208. Sentencing And
Punishment k 2262


Defendant's sentence of 84 months imprisonment for possession of cocaine base was
based on mandatory minimum sentence of 240 months under Sentencing Guidelines,
rather than on sentencing range that had been lowered by Sentencing Commission,
and thus defendant was not entitled to reduction in sentence. U.S. v.
Rivera-Crespo, E.D.Pa.2008, 543 F.Supp.2d 436, as amended. Sentencing And
Punishment k 2262


Statute authorizing court to reduce the "term of imprisonment" when a sentencing
range has subsequently been lowered by Sentencing Commission did not permit court
to reduce the supervised release time of a defendant who had served her prison
time prior to retroactive modification of crack cocaine Guideline, even though she
had served more prison time than she would have if new Guideline had been applied
to her; statute did not permit reduction in original sentence, of which supervised
release was part, but only in term of imprisonment. U.S. v. Guess, D.Me.2008, 541
F.Supp.2d 399. Sentencing And Punishment k 2262


Even if District Court had authority to reduce, pursuant to amendment to the
Sentencing Guidelines' treatment of offenses involving crack cocaine, sentence of
defendant convicted of offenses involving the possession and distribution of crack
cocaine, reduction was not warranted, since sentence under Guidelines amendment
would significantly underrepresent defendant's status as a career offender, and
would create a risk of unwarranted disparities between defendant and other
similarly situated offenders who were sentenced under the career offender
provision. U.S. v. Rivera, E.D.Pa.2008, 535 F.Supp.2d 527. Sentencing And
Punishment k 2262


On motion for sentence modification, court lacked authority to downwardly depart
from Sentencing Guidelines based upon post-sentencing rehabilitation. U.S. v.
Jones, D.Del.2008, 534 F.Supp.2d 465. Sentencing And Punishment k 2263


Bureau of Prisons (BOP) decision denying prisoner's request for compassionate
relief was not arbitrary or capricious, where prisoner's illnesses were of a
chronic, and not life-threatening nature. Leja v. Sabol, D.Mass.2007, 487
F.Supp.2d 1. Sentencing And Punishment k 2250


Defendant failed to show any circumstances required to qualify for a sentence
reduction under statute governing modification of an imposed term of imprisonment.
U.S. v. Cotton, W.D.Va.2004, 420 F.Supp.2d 492. Sentencing And Punishment k
2250


Defendant who was convicted of health care fraud was not entitled to reduction of
her six-month prison sentence under statute governing modification of imposed term
of imprisonment, based on allegations that her imprisonment imposed hardship on
her family, that she did not feel safe, that she had not been cleared for medical
treatment, and that facility offered no opportunities for rehabilitation; there
had been no motion on her behalf filed by director of Bureau of Prisons, defendant
pointed to no statute expressly permitting modification, referenced rule governing
reduction of sentence did not apply, sentencing range had not been lowered, and
referenced statute governing review of sentence did not assist defendant. U.S. v.
Tyler, D.Me.2006, 417 F.Supp.2d 80. Sentencing And Punishment k 2256;
Sentencing And Punishment k 2260


Defendant was not eligible for a special circumstances sentencing reduction based
upon serious changes to his medical condition; although a physician diagnosed
defendant with significant chronic diseases, including osteoarthritis of the
spine, atherosclerosis of the abdominal aorta, and an enlarged heart, after his
sentencing, the Director of the Bureau of Prisons did not file such motion. U.S.
v. Myers, D.N.M.2005, 375 F.Supp.2d 1293. Sentencing And Punishment k 2276


District court did not have authority to modify federal prisoner's sentence due to
prisoner's extraordinary physical impairment, where Director of Bureau of Prisons
(BOP) had not moved for reduction under "compassionate relief" statute. Morales
v. U.S., D.Mass.2005, 353 F.Supp.2d 204. Sentencing And Punishment k 2276



Defendant was not eligible for early release from prison based on alleged
rehabilitation during incarceration. Pak v. U.S., D.Conn.2003, 278 F.Supp.2d 263.
Prisons k 245(3)


Even if federal district court had jurisdiction to decide habeas petition, court
would not alter Bureau of Prison's (BOP's) interpretation of sentence reduction
statute, which allows BOP director to move court to reduce prison term if there
are "extraordinary and compelling" reasons to warrant such a reduction; BOP's
interpretation of "extraordinary and compelling" to include requirement that,
ordinarily, inmate must have medical condition that is terminal, with a
determinable life expectancy was reasonable, because it limited compassionate
release cases to those cases that were truly extraordinary and that might be
decided on an objective basis, and interpretation was still broad enough to apply
to the rare defendant whose circumstances do not match the BOP's traditional
definition. U.S. v. Maldonado, E.D.N.Y.2001, 138 F.Supp.2d 328. Habeas Corpus
k 503.1


Defendant's sentence for manufacturing and possessing with intent to distribute
marihuana could not be reduced to 60 month statutory minimum, as statutory minimum
for manufacturing marihuana offense had to be substituted prior to adding portion
of sentence attributable to failure to appear in order to ensure that defendant's
failure to appear would subject him to "separate and distinct penalty." U.S. v.
Emigh, M.D.Fla.1996, 933 F.Supp. 1055, affirmed 136 F.3d 1330, rehearing and
suggestion for rehearing in banc denied 152 F.3d 937, certiorari denied 119 S.Ct.
568, 525 U.S. 1030, 142 L.Ed.2d 474. Sentencing And Punishment k 2250


Defendant was ineligible for sentence reduction pursuant to statute, providing
three avenues by which court may modify term of imprisonment once imposed
including under certain circumstances upon motion of Director of Bureau of
Prisons, to extent otherwise expressly permitted by statute or by criminal
procedural rule empowering court to correct or reduce defendant's sentence in
three specified instances, or where Sentencing Commission has subsequently lowered
sentencing range applicable to defendant's sentence; none of the above
circumstances applied. U.S. v. Gore, D.Kan.1996, 933 F.Supp. 1018, affirmed 116
F.3d 1489. Sentencing And Punishment k 2221


Defendant was not entitled to reduction of sentence under statute that empowers
district court under certain conditions to reduce term of imprisonment when
sentencing range has subsequently been lowered by Sentencing Commission;
sentencing guidelines policy statement indicates that if defendant is serving term
of imprisonment and guideline range applicable to defendant has been subsequently
lowered as result of certain specified amendments to Guidelines Manual, a
reduction in defendant's term of imprisonment is authorized, but if none of
specified amendments is applicable, reduction in defendant's term is not
consistent with policy statement and thus not authorized, and none of specified
amendments was applicable. U.S. v. Maltbia, D.Kan.1996, 932 F.Supp. 1261.
Sentencing And Punishment k 2262


Defendant who received prison term of 36 months for involvement in marijuana
trafficking conspiracy was not entitled to reduction of sentence based on fact
that sentencing range was subsequently lowered by sentencing guidelines, despite
good conduct while incarcerated, where original sentence already reflected an
exceptional reduction of five levels based partly on part that operation's leader
was able through plea agreements to prevent his own 87 month prison sentence from
being increased when subsequent revelations showed he deserved life sentence, and
where even under amended guidelines defendant would have received significantly
higher sentence but for need to keep his sentence proportionate to that of leader.
U.S. v. Tally, M.D.Pa.1996, 920 F.Supp. 597, affirmed 111 F.3d 128. Sentencing
And Punishment k 2262


Two-hundred-and-forty-month sentence imposed on defendant convicted of crack
cocaine offense was imposed as statutorily-mandated minimum term of incarceration
and not pursuant to the Sentencing Guidelines, such that defendant was not
eligible for sentence reduction following amendment of the Sentencing Guidelines
to lower sentencing range applicable to offense involving crack cocaine; district
court's written judgment indicated that it was adopting presentence report (PSR),
which included recommendation of statutory mandatory minimum sentence, and mere
fact that district court erroneously imposed the additional five-year term of
supervised release indicated by Guidelines, rather than ten-year term specified in
statute, or that government, in effort to cover all its bases, made arguments that
would only have been pertinent to a sentencing under the Guidelines, was
insufficient to show that Guidelines sentence was intended. U.S. v. Dennis,
C.A.10 (Okla.) 2009, 325 Fed.Appx. 718, 2009 WL 1416724, Unreported. Sentencing
And Punishment k 2262


District court's decision reducing defendant's sentence by fifty-two months rested
on pertinent considerations despite failure to expressly mention each of the
statutory factors; court had before it an amended presentence report (PSR)
discussing factors such as defendant's prison disciplinary record, health, and
family situation, exhibits and written argument from defendant's appointed counsel
regarding some sentencing factors, including disparities in crack cocaine ratios,
and the benefit of first-hand knowledge from the extensive prior sentencing
proceedings. U.S. v. Hooks, C.A.9 (Ariz.) 2009, 325 Fed.Appx. 561, 2009 WL
1185514, Unreported. Sentencing And Punishment k 373


Under the statute authorizing sentence reduction in the case of a defendant who
was sentenced to a term of imprisonment based on a sentencing range was
subsequently lowered by the Sentencing Commission, the district court lacked
authority to reduce the 18-month sentence that was imposed upon revocation of the
supervised release that had been imposed upon defendant's conviction for
possession with intent to distribute crack cocaine and possession of a firearm
during a drug-trafficking offense, based on an amendment to the sentencing
guidelines that retroactively reduced base offense levels applicable to crack
cocaine offenses. U.S. v. Holmes, C.A.11 (Ga.) 2009, 323 Fed.Appx. 848, 2009 WL
1068226, Unreported. Sentencing And Punishment k 2262


Defendant convicted for importing and trafficking in heroin was not entitled to
modification of his sentence, which was increased under sentencing guideline
authorizing a four-level sentencing increase for defendant's role as an organizer
or leader, based on a subsequent amendment to the guideline; amendment clarified
that the increase was required when defendant was the organizer or leader of one
or more other participants in the criminal activity, and sentencing court
expressly concluded that defendant was an organizer or leader of the required
number of participants. U.S. v. Enigwe, C.A.3 (Pa.) 2006, 181 Fed.Appx. 321, 2006
WL 1518970, Unreported. Sentencing And Punishment k 2262


District court lacked authority to modify federal inmate's sentence, given that
neither Director of Bureau of Prisons (BOP) nor government moved for sentence
reduction and inmate's motion for modification was not filed within seven days of
sentencing. U.S. v. Lockhart, C.A.11 (Ga.) 2005, 140 Fed.Appx. 883, 2005 WL
1706139, Unreported, rehearing and rehearing en banc denied 172 Fed.Appx. 993,
2006 WL 220849. Sentencing And Punishment k 2276; Sentencing And Punishment
k 2285


7. Mandatory minimum sentence

District court lacked authority, in sentence modification proceedings following
amendment of cocaine base Sentencing Guidelines, to impose sentence below the
amended Guideline range, where original sentence was within the advisory
guidelines range that applied at time of original sentencing. U.S. v. Wagner,
C.A.8 (Neb.) 2009, 563 F.3d 680, certiorari denied 130 S.Ct. 318, 175 L.Ed.2d 210.
Sentencing And Punishment k 2262


In resentencing defendants based on retroactive amendment to crack cocaine
sentencing guidelines, district court lacked authority to impose sentences below
minimum amended guideline range; policy statements in statute authorizing sentence
reduction provided that proceedings under statute did not constitute full
resentencing of defendants, and that courts could not reduce defendants' term of
imprisonment below amended guideline range. U.S. v. Cunningham, C.A.7 (Ill.)
2009, 554 F.3d 703, certiorari denied 129 S.Ct. 2826, 174 L.Ed.2d 552, certiorari
denied 129 S.Ct. 2840. Sentencing And Punishment k 2329


Defendant convicted of crack cocaine offenses, who was subject to mandatory
minimum sentence of 240-months based on his prior narcotics felony, was not
eligible for modification of his sentence after sentencing guideline for crack
cocaine offenses was retroactively amended to reduce base offense levels based on
quantity of crack cocaine, even though district court departed below mandatory
minimum; defendant's sentence was based on guideline applicable to repeat
offenders, defendant's base offense level played no role in calculation of range,
and court stated sentencing range in guidelines had no bearing on sentence
imposed. U.S. v. Williams, C.A.2 (N.Y.) 2009, 551 F.3d 182. Sentencing And
Punishment k 2262


Statutory mandatory minimum sentence of ten years for conspiracy to possess with
intent to distribute approximately 16 grams of Lysergic Acid Diethylamide (LSD)
overrode retroactive application of amendment to sentencing guideline
incorporating new method for calculating quantity of LSD to be used in determining
defendant's offense level and guideline range, and thus, defendant was not
entitled to reduction of his sentence under amended guideline to level below
mandatory minimum sentence; policy statement providing that new approach to
calculating amount of LSD does not override applicability of "mixture or
substance" for purpose of applying any mandatory minimum sentence led to
inescapable conclusion that mandatory minimum sentence overrode retroactive
application of amended guideline. U.S. v. Pardue, C.A.5 (La.) 1994, 36 F.3d 429,
rehearing denied, certiorari denied 115 S.Ct. 1969, 514 U.S. 1113, 131 L.Ed.2d 858
. Sentencing And Punishment k 2241


District court had no power to reduce minimum sentence mandated by statute for
conviction for conspiracy to distribute lysergic acid diethylamide (LSD). U.S. v.
Dimeo, C.A.1 (Me.) 1994, 28 F.3d 240. Conspiracy k 51


Even if subsequent amendment to Sentencing Guidelines had lowered offense level
for conspiracy to distribute LSD and distribution of LSD near a school house,
amendment did not warrant reduction of defendant's mandatory minimum sentence of
20 years, based on drug quantity involved and defendant's prior narcotics
convictions. U.S. v. Galazo, S.D.N.Y.2003, 2003 WL 22251331, Unreported.
Sentencing And Punishment k 2262


8. Eligibility for safety valve

Defendant's ineligibility for drug conspiracy sentence below statutory mandatory
minimum pursuant to "safety valve" provision did not preclude district court from
reducing sentence to statutory mandatory minimum, under Sentencing Guidelines
amendment which reduced marijuana equivalency ratio from one kilogram to 100 grams
per plant, even if defendant would not be eligible for sentence within amended
guidelines range. U.S. v. Aguilar-Ayala, C.A.9 (Cal.) 1997, 120 F.3d 176.
Sentencing And Punishment k 2262


9. Number of reductions

District court's weighing of prior downward departure for substantial assistance
in the investigation and prosecution of others in rejecting the sentencing
reduction under the amended crack cocaine guidelines was not an abuse of
discretion; the district court examined statutory sentencing factors as well as
policy considerations, particularly defendant's threat to the safety of others and
ultimately determined there was a need for the sentence previously imposed and
that a further reduction was inappropriate. U.S. v. Cosby, C.A.10 (N.M.) 2008,
2008 WL 5340429. Sentencing And Punishment k 2262


Mere fact that defendant received an earlier sentence that varied below the
advisory sentencing guidelines range did not bar application of amendments to
crack cocaine guidelines for a further reduction of defendant's sentence. U.S. v.
Goodman, E.D.Pa.2008, 590 F.Supp.2d 727. Sentencing And Punishment k 2262


After reducing defendant's sentence based on retroactive amendment of guideline
method for measuring quantity of marijuana yielded by marijuana plant, district
court could consider defendant's motion to further reduce sentence under statute
dealing with reduction in cases of defendant's sentence to term based on range
that was subsequently lowered; basis for further reduction was fact that district
court, in its initial reduction, had chosen upper end of new range based on belief
that such sentence was necessary to allow defendant to participate in
comprehensive drug treatment program, while defendant was informed after initial
reduction that even sentence at top end of new range was not long enough to allow
him to participate in program. U.S. v. Hollenbeck, N.D.N.Y.1996, 932 F.Supp. 53.
Sentencing And Punishment k 2317


9a. Revocation of supervised release

District court could consider assault defendant's need for rehabilitation, through
imposing sentence of sufficient length to provide him with opportunity to
participate in voluntary 500-hour substance abuse treatment program, upon revoking
his supervised release. U.S. v. Tsosie, C.A.10 (N.M.) 2004, 376 F.3d 1210,
certiorari denied 125 S.Ct. 1298, 543 U.S. 1155, 161 L.Ed.2d 122. Sentencing And
Punishment k 2033



10. Jurisdiction

District court was without jurisdiction to enter order denying defendant's motion
for reduction of sentence more than seven days after it entered sentence, even
though defendant filed motion for reduction of sentence on date sentence was
entered, and defendant did not file direct appeal. U.S. v. Higgs, C.A.3 (N.J.)
2007, 504 F.3d 456. Sentencing And Punishment k 2285


District court lacked subject matter jurisdiction over motion in which defendant,
following issuance of Supreme Court's decision in United States v. Booker,
requested that alternative sentence, which was to be applied if Sentencing
Guidelines did not survive that decision, be substituted in place of sentence
actually imposed; motion did not satisfy statute restricting authority of district
courts to alter sentences after their imposition or rule that authorized
modification of sentence within seven days of its imposition to correct technical
error or on prosecutor's motion to reward substantial assistance rendered after
sentence was imposed. U.S. v. Smith, C.A.7 (Ill.) 2006, 438 F.3d 796. Sentencing
And Punishment k 2285


More than seven days after the imposition of defendant's sentence, the district
court had no jurisdiction to alter it, even if the sentence was legally erroneous.
U.S. v. Austin, C.A.8 (Ark.) 2000, 217 F.3d 595. Sentencing And Punishment k
2285


Dual sentencing procedure did not authorize district court to re-invoke its
jurisdiction over unappealed, nonguidelines sentence to impose guidelines sentence
following Mistretta decision of the United States Supreme Court upholding
constitutionality of Sentencing Guidelines; district court was divested of all
jurisdiction when time for appeal from original sentence expired. U.S. v. Martin,
C.A.6 (Tenn.) 1990, 913 F.2d 1172.


The district court lacked jurisdiction to entertain defendant's motion for a
reduction of his 262-month sentence for conspiracy to distribute cocaine base and
distribution of cocaine base under statute authorizing court to reduce a sentence
for a defendant who had been sentenced to a term of imprisonment based on a
sentencing range that had subsequently been lowered by the Sentencing Commission,
since defendant was sentenced pursuant to sentencing guidelines' career offender
guideline, under which he was assigned a base offense level of 37, rather than
pursuant to guideline for most crimes involving cocaine base, which was amended
after defendant's sentencing to reduce base offense level from 26 to 24 for
offenses involving cocaine base quantity involved in defendant's offenses. U.S.
v. Conce, D.Mass.2008, 552 F.Supp.2d 95. Sentencing And Punishment k 2262



District court did not have subject matter jurisdiction to apply variance to
defendant convicted before Supreme Court's decision in Booker as result of
defendant's eligibility for sentence reduction under retroactive crack cocaine
amendments, where defendant's conviction was final, and no variance was applied at
sentencing. U.S. v. Julien, D.Me.2008, 550 F.Supp.2d 138. Sentencing And
Punishment k 2256


Court of Appeals lacked jurisdiction to review district court's refusal to reduce
restitution order, after district court granted defendant's motion to modify
sentence of imprisonment based upon amendment to relevant sentencing guideline
that resulted in lower base offense level, where amendment had no effect on
restitution amount or method of calculation of restitution. U.S. v. Richards,
C.A.3 (Virgin Islands) 2003, 68 Fed.Appx. 340, 2003 WL 21500331, Unreported.
Criminal Law k 1134.84


District court lacked authority to modify defendant's sentence on basis of
post-conviction rehabilitation; motion was neither a direct appeal from conviction
nor a collateral attack on sentence, and no statutory basis for modification
existed. U.S. v. Alvarado-Carrillo, C.A.10 (N.M.) 2003, 64 Fed.Appx. 151, 2003 WL
1909290, Unreported. Sentencing And Punishment k 2263


District court lacked jurisdiction to modify sentence following defendant's
unsuccessful appeal and unsuccessful motion to vacate, absent government motion to
do so or evidence of arithmetical, technical, or other clear error. Rivera v.
U.S., S.D.N.Y.2003, 2003 WL 76988, Unreported. Sentencing And Punishment k
2271; Sentencing And Punishment k 2276


District court lacked authority to modify previously imposed sentence under
statute allowing reduction in sentence upon lowering of sentencing range by
Sentencing Commission, where defendant did not appeal from earlier resentencing
judgment resulting from lowering of his guidelines' sentencing range, and his
current motion was not based on subsequently lowered guidelines range, nor on any
of other limited circumstances which triggered court's authority under statute.
U.S. v. Ugarte Castro, C.A.1 (Puerto Rico) 2000, 230 F.3d 1347, 2000 WL 1450995,
Unreported, certiorari denied 121 S.Ct. 1145, 531 U.S. 1174, 148 L.Ed.2d 1008.
Sentencing And Punishment k 2262


11. Lapse of time

District court lacked authority to increase sentence of defendant after he had
been granted sentence departing downwards six levels under Sentencing Guidelines
to reflect proposed cooperation with government, and defendant subsequently
refused to testify against codefendants; only applicable rule governing
correction of sentence required that district court act within seven days of
original sentence, and deadline had been missed in present case. U.S. v. Lopez,
C.A.5 (Tex.) 1994, 26 F.3d 512. Sentencing And Punishment k 2285


District court lacked jurisdiction, under rule permitting court to correct
sentences due to error, to modify prisoner's sentence to allow him to serve
remainder of it in home detention due to postsentencing leukemia diagnosis; there
was no arithmetical, technical or clerical error alleged, and prisoner filed his
petition more than seven days after his sentence was imposed. Caldwell v. U.S.,
S.D.N.Y.1998, 992 F.Supp. 363. Sentencing And Punishment k 2285


Defendant was not entitled to relief on his motion to modify his sentence, where
he did not challenge his sentence based upon amendment to Federal Sentencing
Guidelines, and did not file motion until nearly one year after sentencing.
Calder v. U.S., N.D.N.Y.1996, 918 F.Supp. 65. Sentencing And Punishment k
2285


Section of the Sentencing Reform Act providing for modification of an imposed term
of imprisonment did not reconfer jurisdiction upon sentencing court to grant
relief from sentence which was imposed more than six years prior to effective date
of the Act. U.S. v. Deckard, N.D.Ill.1987, 675 F.Supp. 1127. Sentencing And
Punishment k 2279


12. Correction of illegal sentence

Defendant convicted of possession with intent to distribute crack cocaine and
sentenced as a career offender was not entitled to modification of his sentence on
ground that the Sentencing Commission reduced the base-offense levels for
crack-cocaine offenses under the Sentencing Guidelines and made the changes
retroactive; the amendment to the Guidelines did not provide benefit to career
offenders, as it would not lower the applicable Guidelines range. U.S. v. Forman,
C.A.7 (Ill.) 2009, 553 F.3d 585, certiorari denied 129 S.Ct. 1924, 173 L.Ed.2d
1071, certiorari denied 129 S.Ct. 2817, 174 L.Ed.2d 310. Sentencing And
Punishment k 2262


Statute providing that judgment of conviction including sentence constitutes
"final judgment" for all other purposes notwithstanding that sentence to
imprisonment can subsequently be corrected does not grant jurisdiction to district
court to do anything, particularly to correct illegal sentence; statute merely
defines term "final judgment." U.S. v. Auman, C.A.8 (Minn.) 1993, 8 F.3d 1268.
Sentencing And Punishment k 2239



13. Habeas corpus

District court erred in sua sponte converting federal prisoner's motion for
modification of sentence into petition for writ of habeas corpus, where district
court did not warn prisoner of its intent to do so, warn prisoner of consequences,
or give prisoner opportunity to amend or withdraw motion; conversion may well have
had adverse impact on prisoner's ability to file, and prevail on, successive
petition. Simon v. U.S., C.A.2 (N.Y.) 2004, 359 F.3d 139. Habeas Corpus k
666


Sentencing Guidelines apply to sentencing court in first instance, but do not
provide authority for habeas court to set aside or modify sentence. Morales v.
U.S., D.Mass.2005, 353 F.Supp.2d 204. Habeas Corpus k 503.1


Relief sought in the form of reduction of sentence by reason of subsequent
amendment of Sentencing Guidelines was beyond the scope of motion for reduction
under the habeas statutes, but motion could be treated as one under sentencing
statute empowering court to modify sentence in light of subsequent amendments of
the Guidelines. U.S. v. Rios-Paz, E.D.N.Y.1992, 808 F.Supp. 206. Sentencing And
Punishment k 2221; Criminal Law k 1557(1)


14. Plea agreement

Defendant who entered plea agreement specifying term of imprisonment did not
receive sentence based upon applicable Sentencing Guidelines range and, thus,
could not seek reduction of his sentence on ground that sentencing range was
subsequently lowered by Sentencing Commission, even though sentencing court
erroneously determined applicable range before imposing greater sentence under
agreement. U.S. v. Trujeque, C.A.10 (N.M.) 1996, 100 F.3d 869. Sentencing And
Punishment k 2262


15. Appeal

By entering into broadly worded agreement waiving his right to appeal the sentence
that he received for crack cocaine offense on any ground, as well as his right to
contest sentence in any post-conviction proceeding, defendant did not waive right
to appeal district court's denial of his motion for sentence reduction following
amendment of sentencing guidelines to reduce guidelines range for defendant's
crack cocaine offense; defendant's motion, and his appeal from denial thereof, did
not "contest' sentence that he had received, but brought to court's attention
changes in guidelines that allowed for sentence reduction. U.S. v. Cooley, C.A.5
(La.) 2009, 2009 WL 4642610. Criminal Law k 1026.10(4)



Abuse of discretion standard of review applied to a district court's ruling on a
motion for sentencing reduction on the basis of the retroactive amendment to the
sentencing guidelines applicable to crack cocaine offenses; statute governing such
reductions gave the district court discretion to resentence the defendant based on
a guidelines amendment, but did not require a reduction. U.S. v. Borden, C.A.2
(N.Y.) 2009, 2009 WL 1025717, amended and superseded 564 F.3d 100. Criminal Law
k 1156.11


Defendant's motion to modify his 292-month sentence for possessing cocaine base
with intent to distribute on the ground that his sentencing guidelines range had
subsequently been lowered by the Sentencing Commission was part of the defendant's
criminal proceeding, and thus, the district court's denial of that motion was
subject to the 10-day time limit for filing of a notice of appeal in criminal
matters. U.S. v. Byfield, C.A.D.C.2008, 522 F.3d 400, 380 U.S.App.D.C. 375.
Criminal Law k 1081(4.1)


Under any standard of review, defendant's appeal from order denying his motion for
resentencing was frivolous, for purposes of the in forma pauperis statute; Booker
decision could not be the basis for a motion to modify a sentence, under statute
authorizing court to modify a sentence based on subsequent lowering of sentencing
guidelines range by Sentencing Commission, and did not apply retroactively to
cases on collateral review. Cortorreal v. U.S., C.A.2 (N.Y.) 2007, 486 F.3d 742.
Courts k 100(1); Criminal Law k 1077.1(2)


Ten-day period for appealing criminal cases, rather than 60-day period for
appealing civil cases in which United States is party, applied to appeal from
denial of motion to modify term of imprisonment, notwithstanding that district
court docketed motion as civil proceeding. U.S. v. Espinosa-Talamantes, C.A.10
(N.M.) 2003, 319 F.3d 1245, opinion after remand 69 Fed.Appx. 444, 2003 WL
21662059. Criminal Law k 1069(1)


Applicable period to file notice of appeal from denial of motion to modify the
term of imprisonment was the ten-day period applicable to criminal proceedings,
rather than the sixty-day period applicable to civil proceedings when the United
States was a party. U.S. v. Arrango, C.A.2 (N.Y.) 2002, 291 F.3d 170. Criminal
Law k 1081(4.1)


Rule requiring defendant to file notice of appeal within ten days after entry of
judgment appealed from, unless excusable neglect is shown, applies to appeal of
denial of modification of imposed term of imprisonment. U.S. v. Petty, C.A.8
(Ark.) 1996, 82 F.3d 809. Criminal Law k 1081(4.1)



Notice of appeal from order granting or denying motion to modify term of
imprisonment on ground that sentencing guidelines range originally used to
sentence defendant has been lowered must be filed within ten days pursuant to rule
addressing appeals in "criminal case"; such motion is step in criminal case, and
because sentencing court's consideration of motion requires court to reexamine
original sentence in light of changes to applicable guidelines, and exercise its
discretion accordingly, order granting or denying motion is criminal in nature.
U.S. v. Ono, C.A.9 (Cal.) 1995, 72 F.3d 101, opinion after remand 87 F.3d 1324.
Criminal Law k 1081(4.1)


District Court would not construe and consider the claims in defendant's motion
for a sentence reduction under statute governing modification of an imposed term
of imprisonment as a successive motion to vacate, where defendant did not first
obtain certification from the Court of Appeals to file such a petition. U.S. v.
Cotton, W.D.Va.2004, 420 F.Supp.2d 492. Sentencing And Punishment k 2275


Amended judgment of conviction applying a beneficial retroactive guideline
amendment to defendant's sentence was an order that commenced 10 day period for
appealing in criminal cases. U.S. v. Hudgins, W.D.Va.2006, 409 F.Supp.2d 745,
affirmed 191 Fed.Appx. 227, 2006 WL 2089139. Criminal Law k 1069(5)


Notice of appeal by prisoner challenging denial of motion for reduction of
sentence was timely filed, notwithstanding expiration of ten-day deadline, since
prison officials delayed in forwarding order denying motion to proper prison.
U.S. v. Benanti, C.A.3 (Pa.) 2005, 137 Fed.Appx. 479, 2005 WL 1432442, Unreported.
Criminal Law k 1081(4.1)


Defendant did not waive right to file motion to modify sentence by entering into
plea agreement stating that he waived right to appeal any sentence within
guideline range applicable to statute of conviction as determined by court after
resolution of objections by either party to presentence report and to challenge
sentence or manner in which it was determined in any collateral attack, and
stating that defendant specifically agreed not to appeal court's determination
resolving any contested sentencing factor; plea agreement did not explicitly state
that defendant had waived right to bring later motion to modify his sentence under
statute governing court's ability to reduce term of imprisonment based on
sentencing range that had subsequently been lowered by the Sentencing Commission,
and Commission amended aggravated felony enhancement that allegedly lowered the
authorized term of imprisonment to which defendant was subject. U.S. v.
Chavarria-Ahumada, C.A.10 (N.M.) 2003, 73 Fed.Appx. 362, 2003 WL 21958332,
Unreported. Sentencing And Punishment k 2223



16. Remand

On appeal from denial of defendant's motion to reduce sentence for conspiracy to
possess with intent to distribute more than 1.5 kilograms (kg) of cocaine base,
based on amendment to Sentencing Guidelines which lowered base offense level for
offenses involving between 1.5 and 4.5 kg from 38 to 36 and provided that the
maximum base offense level of 38 did not kick in until the crime involved more
than 4.5 kg, remand was required to determine how much more than 1.5 kg of cocaine
base defendant possessed; all cocaine sold in conspiracy, both crack and powder,
added up to over 4.5 kg, but total amount of cocaine base sold in connection with
conspiracy was unclear. U.S. v. Hall, C.A.7 (Ill.) 2009, 582 F.3d 816. Criminal
Law k 1181.5(8)


District court's order imposing an amended sentence would be vacated and remanded
for further proceedings, where there was nothing in the record to show that the
court, in considering defendant's motion for reduction of sentence, considered the
statutory sentencing factors in choosing a new sentence. U.S. v. Douglas, C.A.11
(Ga.) 2009, 576 F.3d 1216. Sentencing And Punishment k 2325


District court plainly erred in seeking to promote drug defendant's rehabilitation
through longer term of imprisonment; although circuit split existed on issue of
whether statute providing that imprisonment was not an appropriate means of
promoting correction and rehabilitation allowed sentencing court to treat
rehabilitation as reason for lengthening sentence, statute clearly prohibited the
practice, there was reasonable likelihood that defendant's sentence would have
been shorter had district court properly viewed imprisonment as inappropriate for
promoting rehabilitation, given its statement that it believed that defendant
would benefit from the prison system's rehabilitative programs over a somewhat
longer period of time, and error seriously affected the fairness, integrity or
public reputation of judicial proceedings. In re Sealed Case, C.A.D.C.2009, 573
F.3d 844. Sentencing And Punishment k 112


Defendant convicted of distributing crack cocaine was entitled to limited remand
to the District Court, following denial of his motion for modification of his
sentence on ground that the Sentencing Commission reduced the base-offense levels
for crack-cocaine offenses under the Sentencing Guidelines and made the changes
retroactive; the District Court failed to comply with circuit rule, requiring
District Court to give reasons for its decision either orally or by written
statement, and the Court of Appeals was unable to discern the District Court's
reason for denying the motion. U.S. v. Forman, C.A.7 (Ill.) 2009, 553 F.3d 585,
certiorari denied 129 S.Ct. 1924, 173 L.Ed.2d 1071, certiorari denied 129 S.Ct.
2817, 174 L.Ed.2d 310. Sentencing And Punishment k 2312



Proper vehicle for seeking retroactive relief under revised sentencing guideline
for crack cocaine offenses was a motion to the district court for modification of
imposed term of imprisonment, rather than vacation and remand of defendant's
sentence. U.S. v. Tatum, C.A.7 (Wis.) 2008, 548 F.3d 584. Criminal Law k
1181(2); Sentencing And Punishment k 2262


Remand for limited purpose of determining whether defendant could establish
excusable neglect or good cause for untimely filing of notice of appeal from order
denying motion to modify term of imprisonment was appropriate, where defendant
filed notice of appeal more than ten days after entry of district court's order,
and he failed to file motion to extend period for filing notice of appeal, but he
filed notice of appeal within 30-day extension period. U.S. v.
Espinosa-Talamantes, C.A.10 (N.M.) 2003, 319 F.3d 1245, opinion after remand 69
Fed.Appx. 444, 2003 WL 21662059. Criminal Law k 1181.5(3.1)


Remand was required by refusal to reduce sentence, based on Sentencing Guideline
amendment that had effect of reducing defendant's net offense level, when
recalculated imprisonment range was below statutory five-year mandatory minimum
after taking into account increased criminal history category that district court
determined was appropriate to reflect defendant's past criminal conduct, but
district court, in refusing reduction to statutory minimum, departed upward to
sentence appropriate for significantly higher criminal history category, without
explicitly stating reasons for rejecting intermediate categories and reasons were
not implicit from order or the record. U.S. v. Boe, C.A.5 (La.) 1997, 117 F.3d
830. Criminal Law k 1181.5(8)


18 U.S.C.A. s 3582, 18 USCA s 3582


Current through P.L. 111-140 approved 2-16-10

Westlaw. (C) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT