Summary
denying § 3582(c) motion based, in part, on two post-sentencing disciplinary violations that resulted in loss of defendant's visiting privileges, commissary privileges, and job
Summary of this case from U.S. v. MayOpinion
NO. 1:98-CR-00126.
April 22, 2008
OPINION AND ORDER
This matter is before the Court on Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (doc. 95). For the reasons stated herein, the Court DENIES Defendant's motion.
On May 26, 1999, Defendant was sentenced for one count of Conspiracy to Distribute Cocaine and Cocaine Base, in violation of 21 U.S.C. § 846 (doc. 50). The Court determined Defendant's total offense level was thirty-seven (37), with a criminal history category of VI, for a guideline range of 360 months to life (Id.). The Court granted the government's motion for a reduction in sentence, pursuant to U.S.S.G. § 5K1.1, and imposed a term of imprisonment of 180 months (Id.).
Defendant now moves, pursuant to 18 U.S.C. § 3582(c)(2), for an order reducing his sentence from 180 months to 146 months based on the lowered sentencing guideline range, made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(u) (doc. 95). Defendant contends that the substantial assistance he provided to the government, as well as his post-offense rehabilitative efforts, and strong ties to his family, make him a strong candidate for sentence reduction (Id.).
On February 15, 2008, the parties, as well as representatives from the United States Probation Department, met and all parties agreed that Defendant meets the criteria for consideration of the retroactive cocaine base guideline (Id.). However, the government took the position that Defendant should not receive a reduction because he had twenty-two (22) criminal history points at his sentencing (Id.). Thereafter, on February 22, 2008, in accordance with General Order No. 08-03, the United States Probation Department filed a sealed Post-Sentencing Addendum. The Court reviewed the Addendum and the Probation Department's recommendation that Defendant's motion be denied.
Once it is ascertained that a Defendant is eligible for retroactive application of the new crack sentencing guideline, the Court must determine whether a reduction is appropriate in this case. To make that determination, the Court must consider the factors in 18 U.S.C. § 3553(a) to the extent they are applicable, as well as "the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment" and the post-sentencing conduct of the defendant. U.S.S.G. § 1B1.10, Application Note 1(B).
The Court agrees with the parties that Defendant is eligible for application of the new cocaine base guideline, but based on the above listed factors finds that a reduction in sentence is not appropriate. First, the Court finds it significant that since entering the custody of the Bureau of Prisons, Defendant has received two disciplinary violations that have resulted in loss of visiting privileges, commissary, and his job. Further, the Court agrees with the Probation Department's conclusion that:
Based on [Defendant's] lengthy criminal history coupled with the fact that he recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from law enforcement in the instant offense, it is apparent that he is a danger to the community.
For these reasons, the Court DENIES Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (doc. 95)
SO ORDERED.