Opinion
5:03-CR-243-014.
July 30, 2008
MEMORANDUM DECISION AND ORDER
On April 6, 2007, the Second Circuit remanded this case pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and United States v. Booker, 543 U.S. 220 (2005). The Second Circuit's remand in this case does not direct this Court to vacate the sentence imposed on Lance Johnson and resentence him, but rather affords this Court the opportunity to consider whether the sentence imposed on him would be modified after considering the Booker and Crosby decisions, both of which were issued after sentencing in this criminal matter.
The Second Circuit has noted that if, after considering all the factors listed in 18 U.S.C. § 3553(a) and treating the United States Sentencing Guidelines as advisory, this Court finds that it would have imposed a materially different sentence on Johnson, resentencing of him is required. Crosby, 397 F.3d at 120.
On June 19, 2003, defendant-appellant Lance Johnson was charged by a grand jury for the Northern District of New York in a single count indictment with violation of 18 U.S.C. § 1962(d) and 21 U.S.C § 846. See Indictment (Dkt. No. 1). Lance Johnson pled guilty to this charge on January 20, 2004. See Plea Minute Entry (Dkt. No. 202). At Lance Johnson's December 14, 2004 sentencing, this Court adopted the factual findings and recommendations of the Probation Department as stated in its Presentence Investigation Report concerning application of the United States Sentencing Guidelines to Lance Johnson, which found that his criminal history category was VI, that he qualified as a career offender under U.S.S.G. § 4B1.1, and that his total offense level was 34, thereby providing a Sentencing Guidelines range of two hundred sixty-two to three hundred twenty-seven months imprisonment. See Sentencing Minute Entry (Dkt. No. 532). The Court then sentenced Lance Johnson to a term of 262 months imprisonment with 29 months credit that defendant had already served on his state sentence for a total of 233 months remaining on his sentence, to be served concurrent with any sentence he was currently serving, followed by four years of supervised release. See Judgment (Dkt. No. 539).
Both parties submitted sentencing memoranda subsequent to the remand by the Second Circuit. Lance Johnson contends that the Court should: resentence him; reconsider whether he should be deemed a career offender under U.S.S.G. § 4B1.1; and impose a non-Guidelines sentence. See Dkt. No. 731. Finally, defendant argues that he is entitled to a 2-level reduction in his offense level under the amendments to the crack guidelines. See id. The Government opposes any resentencing of Lance Johnson. See Dkt. No. 730.
This Court has reviewed the above-referenced submissions, along with the original judgment, the plea agreement, and the original Presentence Investigation Report. In addition, the Court has reviewed both Booker and Crosby, and has considered all the sentencing factors listed in 18 U.S.C. § 3553(a), with the understanding that the United States Sentencing Guidelines are now advisory. After considering the foregoing, the Court has determined that the sentence of 262 months imprisonment followed by four years of supervised release is a reasonable one. The Court therefore declines to modify or change the original sentence imposed on Lance Johnson, notwithstanding Booker and Crosby.
Therefore, the Court affirmatively states that the sentence imposed on Lance Johnson in this case on December 14, 2004, would still be imposed on him even after considering the principles enunciated in Booker and Crosby.
Finally, defendant requests a 2-level reduction in his offense level based on the Sentencing Commission's implementation of a 2-level reduction of the base offense level for crack cocaine offenses, see Amendments to the Sentencing Guidelines for the United States Courts, 72 Fed.Reg. 28,571-28,572 (2007); U.S.S.G. § 1B1.10(c) (amendment applies retroactively). In this case, the Court based defendant's offense level on his qualification as a career offender under U.S.S.G. § 4B1.1., not on the guideline governing crack offenses, see e.g. U.S.S.G. § 2D1.1. Thus, defendant is not entitled to a 2-level reduction in his offense level. See United States v. Gutierrez, Crim. No. 3:02-cr-00027, 2008 WL 927564, *2 (D.Conn. Apr. 4, 2008) (finding that the defendant was not entitled to a reduction in his offense level following the amendment to the crack guidelines because "the court sentenced [the defendant] as a career offender pursuant to § 4B1.1", not under U.S.S.G. § 2D1.1).
Accordingly it is hereby
ORDERED that resentencing of Lance Johnson in light of Booker and Crosby is DENIED; and it is further
ORDERED that defendant's request for a reduction of sentence is DENIED; and it is further
ORDERED that the Clerk of the Court shall serve copies of this order by regular or electronic mail on the parties to this action.