Opinion
4:05-CR-00154-01-SWW
11-15-2012
UNITED STATES OF AMERICA v. PIERRE BELL
ORDER
Pending is Defendant's Motion to Reduce Sentence (Doc. No. 86) under 18 U.S.C. § 3582.
On July 17, 2007, Defendant was sentenced to 204 months for possession with intent to distribute crack cocaine and two firearms charges. On September 8, 2008, following the first retroactive crack sentencing reduction, Defendant's sentence was reduced to the statutory minimums of 180 months.
See Doc. Nos. 62, 63. Defendant received 144 months on Count 1 and 120 months on Count 3. For Count 2 he received a statutory 60 months consecutive to Count 1 and 3.
See Doc. No. 70. Count 1 was reduced to the statutory minium of 120 months. Counts 2 and 3 remained the same.
Only defendants currently serving sentences determined or affected by a sentencing range calculated using the drug quantity table, U.S.S.C. § 2D1.1, are potentially eligible under Amendment 750. However, there are some defendants for whom the recalculated guideline range, using amended § 2D1.1, will be less than the statutory minimum. In such cases, the defendant is not entitled to a sentence reduction based on the Guideline Amendments -- except in some cases where a defendant previously received a reduction for substantial assistance under either Rule 35 or U.S.S.G. 5K1.1.
See U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence").
U.S.S.G. § 1B1.10(b)(2).
Since Defendant was sentenced to the statutory minimum, and did not receive a reduction for substantial assistance, he is not entitled to a reduction under the Guidelines amendment.
See the United States Sentencing Commission's "Reader-Friendly" Version of the Final 2011 Guideline Amendment Implementing the Fair Sentencing Act, available at http://www.ussc.gov/Meetings_and_Rulemaking/Materials_on_Federal_Cocaine_Offenses/2011 0428_RF_Amendments_Pages.pdf
To the extent that Defendant is requesting relief under the Fair Sentencing Act ("FSA"), the motion is denied. Since neither Defendant's conduct nor sentencing occurred after the FSA was enacted on August 3, 2010, the FSA does not apply to his case.
United States v. Orr, 636 F.3d 944, 958 (8th Cir. 2011) (holding that the FSA was not retroactive and did not apply to a defendant who was sentenced before it became effective). The recent decision in Dorsey v. United States, 132 S. Ct. 2311 (2012) does not affect this case, since it dealt with defendants who were sentenced after the FSA became effective.
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Accordingly, Defendant's Motion to Reduce Sentence (Doc. No. 86) is DENIED.
IT IS SO ORDERED this 15th day of November, 2012.
Susan Webber Wright
UNITED STATES DISTRICT JUDGE