Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona HOWARD D. SUKENIC Arizona State Bar No. 0111990 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 Attorneys for Plaintiff [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Marvin Williams, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY TERM OF INCARCERATION PURSUANT TO 18 U.S.C.§ 3582(c)(2) AND USSG § 1B1.10 NO. CR -04-381-PHX-JAT

The United States of America, by and through undersigned counsel, hereby responds

16 to Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. §3582 (c)(2) and USSG § 17 1B1.10. Defendant asks to be re-sentenced to a lower term of imprisonment based on the 18 recent sentencing guideline amendment adjusting base offense levels for cocaine base 19 ("crack") offenses. As set forth more fully below, the government submits that the defendant 20 may be entitled to some relief in the form of a two level reduction in Offense Level. The 21 defendant, however, is not entitled to any additional relief. 22 I. 23 PROCEDURAL HISTORY AND STATEMENT OF FACTS On April 15, 2005, a federal grand jury returned an indictment against the defendant,

24 and others, charging him with one count of conspiracy to possess with the intent to distribute 25 cocaine base, and two counts of possession with the intent to distribute cocaine base. On June 26 16, 2005, the defendant pleaded guilty to one count of possession with the intent to distribute 27

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1 cocaine base. 1/

A brief summary of the facts, as set forth in the plea agreement, are that on

2 or about March 30, 2004, a confidential source working for the government purchased two 3 ounces (66.8 grams) of cocaine base from the defendant. A Presentence Report was prepared 4 listing a base Offense Level of 32 based on the total amount of drugs. 2/ At sentencing, the 5 defendant was credited with a three level reduction for acceptance of responsibility and was 6 also credited, upon motion of the government, with an additional seven level reduction. The 7 defendant was found to be in Criminal History Category IV, thereby making his adjusted 8 sentencing range 63-78 months. 3/ The defendant was sentenced by this Court, on November 9 22, 2005, to, among other things, 63 months in the Bureau of Prisons. 10 11 12 III. ARGUMENT A. The Sentencing Guidelines Amendment Is to be Applied Retroactively In order to determine the applicability of an amendment to the Sentencing Guidelines

13 (U.S.S.G.), both Title 18 of the United States Code and the Guidelines themselves must be 14 consulted. 15 16 17 18 19 20 The United States Sentencing Commission recently changed its policy applying the guidelines 21 to cases involving crack cocaine. In Section 1B1.10, the Sentencing Commission identified 22 23 The defendant's plea agreement, specifically paragraph 6, contains the defendant's 24 waiver of defenses and appeal rights. 25 26 27 The total amount of cocaine base, inclusive of all relevant conduct, was found to be 122.1 grams.
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Title 18, Section 3582(c)(2) provides: [I]n 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.

Based on a final Offense Level of 22.
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1 the amendments which may be applied retroactively pursuant to § 3582(c), and articulated the 2 proper procedure for implementing the amendment in a concluded case. 4/ On December 11, 3 2007, the Commission issued a revised version of Section 1B1.10, which emphasizes the 4 limited nature of relief available under 18 U.S.C. § 3582 (c). This revised section, effective 5 on March 3, 2008, provides, in relevant part: 6 7 8 9 10 11 12 13 14 15 16 The amendment upon which defendant relies is Amendment 706, effective November 17 1, 2007, which reduced the base offense level two levels for most crack offenses. 18 December 11, 2007, the Commission added Amendment 706 to the list of amendments stated 19 20 21
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(1) In General.--In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (C) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement. (2) Exclusions.--A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-- (A) none of the amendments listed in subsection (C) is applicable to the defendant; or (B) an amendment listed in subsection (C) does not have the effect of lowering the defendant's applicable guideline range. (3) Limitation.--Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.

On

Section 1B1.10 is based on 18 U.S.C. § 3582(c)(2), and also implements 28 U.S.C. § 994(u), which provides: "If the Commission reduces the term of imprisonment recommended in the 22 guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment 23 for the offense may be reduced." 24 25 26 27 A guideline amendment may be applied retroactively only when expressly listed in Section 1B1.10(c). See, e.g., United States v. Cueto, 9 F.3d 1438, 1441 (9th Cir. 1993).
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Amendment 706 was further amended in the technical and conforming amendments set forth in Amendment 711, also effective November 1, 2007.
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1 in Section 1B1.10(C) that may be applied retroactively, effective March 3, 2008. When 2 reducing the crack cocaine base offense levels, the Commission reasoned that it could respect 3 statutory mandatory minimum drug penalties while still reducing the offense levels for crack 4 offenses, notwithstanding its stated criticism of the 100:1 ratio applied by Congress to powder 5 cocaine and crack cocaine offenses when setting those minimum penalties. See USSG., 6 Supplement to App. C, Amend. 706. 6/ 7 Previously, the Commission had set the crack offense levels in Section 2D1.1 above the Under the amendment, the

8 range which included the mandatory minimum sentence.

9 Commission has set the offense levels so that the resulting guideline range includes the 10 mandatory minimum penalty triggered by that amount, and then set corresponding offense 11 levels for quantities which fall below, between, or above quantities that trigger statutory 12 mandatory minimum penalties. For example, a trafficking offense involving five grams of 13 crack cocaine requires a statutory mandatory minimum sentence of five years imprisonment. 14 See 21 U.S.C. § 841(b)(1)(B). Therefore, the revised guideline applies an offense level of 24 15 to a quantity of crack of at least five grams but fewer than 20 grams; at criminal history 16 category I, this level produces a guideline range of 51-63 months (encompassing the 60-month 17 mandatory minimum). 18 The final result of the amendment is a reduction of two levels for each of the guideline

19 ranges for crack offenses. At the high end, the guideline previously applied offense level 38 20 to any quantity of crack of 1.5 kilograms or more. That offense level 38 now applies to a 21 quantity of 4.5 kilograms or more. A quantity of at least 1.5 kilograms but fewer than 4.5 22 kilograms falls in offense level 36. At the low end, the guideline previously assigned level 12 23 24
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In Kimbrough v. United States, 128 S.Ct. 558 (2007), the Court held that district courts "may 25 consider the Guidelines' treatment of crack and powder cocaine offenses" in deciding whether to vary from the advisory Guidelines range for crack offenders. However, that issue is not 26 pertinent here, because this case involves only a requested § 3582(c)(2) reduction based on a specific guideline amendment. 27
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1 to a quantity of less than 250 milligrams. That offense level 12 now applies to a quantity of 2 less than 500 milligrams. Amendment 711 also made conforming amendments to the drug 3 conversion chart, which is employed where the offenses of conviction involved crack as well 4 as other controlled substances. 5 6 B. Defendant's Sentence May Be Reduced. Defendant is correct that Amendment 706 reduced the guideline range applicable in his

7 case, and therefore the Court may consider whether to reduce his sentence. Specifically, the 8 base Offense Level is now 30, pursuant to USSG § 2D1.1 (Nov. 2007). A ten level reduction 9 would lower the Offense Level to 20. At the established criminal history category of IV, this 10 would result in an adjusted sentencing range of 51 to 63 months. This is a reduction from the 11 previously applied adjusted range of 63 to 78 months. 12 13 1. Sentence Reduction is Discretionary Although the defendant may qualify for a reduction in sentence under Section

14 3582(c)(2) and the applicable policy statements of the Commission, a reduction of sentence 15 is not automatic. This Court's discretion is set forth in Section 3582(c)(2) itself, which 16 provides: "the court may reduce the term of imprisonment, after considering the factors set 17 forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent 18 with applicable policy statements issued by the Sentencing Commission." Thus, "[t]he grant 19 of authority to the district court to reduce a term of imprisonment is unambiguously 20 discretionary," even when the guideline range is actually reduced. United States v. Vautier, 21 144 F.3d 756, 760 (11th Cir. 1998). 22 Similarly, Section 1B1.10 directs that "the court shall consider the factors set forth in

23 18 U.S.C. § 3553(a) in determining . . . whether a reduction in the defendant's term of 24 imprisonment is warranted." Id. app. note 1(B)(I); see also U.S.S.G. § 1B1.10 background 25 ("The authorization of such a discretionary reduction does not otherwise affect the lawfulness 26 of a previously imposed sentence, does not authorize a reduction in any other component of 27
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1 the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter 2 of right."). Courts have routinely upheld district courts' discretion in declining to reduce 3 sentences. United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995) (district court 4 permissibly declined to reduce sentence); United States v. Ursery, 109 F.3d 1129, 1137 (6th 5 Cir. 1997); United States v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993); United States v. Wales, 6 977 F.2d 1323, 1327-28 (9th Cir. 1992); United States v. Mueller, 27 F.3d 494, 497 n.5 (10th 7 Cir. 1994). 8 "Thus, reading § 3582(c)(2) and the Sentencing Guidelines together, the district court

9 must make two distinct determinations before deciding whether to reduce a defendant's 10 sentence under § 3582(c)(2)." Vautier, 144 F.3d at 760. First, Section 1B1.10(b) directs: 11 12 13 14 15 In determining whether, and to what extent, a reduction in the term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced .... In other words, "the court must substitute the amended guideline range for the originally

16 applied guideline range and determine what sentence it would have imposed. In undertaking 17 this first step, only the amended guideline range is changed. All other guideline application 18 decisions made during the original sentencing remain intact." Vautier, 144 F.3d at 760. Then, 19 in the second step, "in light of the conclusion reached in the first step, the court must consider 20 the factors listed in § 3553(a) and determine whether or not to reduce the defendant's original 21 sentence." Id. 22 23 2. Sentence Reduction is Limited The extent of the reduction is strictly limited. Congress delegated to the Sentencing

24 Commission the authority to determine to what extent a sentence may be reduced. See 18 25 U.S.C. § 3582(c)(2); 28 U.S.C. § 994(u). The Commission, in turn, directed in Section 26 1B1.10(b) that, with one exception (where the defendant earlier received a below-guideline 27
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1 sentence, which was not the case here), "the court shall not reduce the defendant's term of 2 imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than 3 the minimum of the amended guideline range determined under subdivision (1)." U.S.S.G. 4 § 1B1.10(b)(2)(A). 7/ Thus, the Court may not reduce the sentence below the range provided 5 by the amended guideline, and "in no case . . . shall the term of imprisonment be reduced 6 below time served." U.S.S.G. § 1B1.10 app. note 3. 7 In United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), the Ninth Circuit held that,

8 when applying a retroactive guideline amendment in a Section 3582(c)(2) proceeding, the 9 newly calculated range must be treated as advisory and not mandatory, citing United States v. 10 Booker, 543 U.S. 220 (2005). Hicks answered two questions: (1) "whether § 3582(c)(2) 11 proceedings fall within the scope of Booker's ambit," and (2) "whether policy statements by 12 the Sentencing Commission nonetheless preclude the application of Booker to § 3582(c)(2)." 13 Hicks, 472 F.3d at 1169. The court held that "Booker abolished the mandatory application of 14 the Sentencing Guidelines in all contexts," that treating the recalculated guideline range in a 15 Section 3582(c)(2) proceeding as advisory "is not inconsistent with any applicable policy 16 statement," and that "to the extent that the policy statements are inconsistent with Booker by 17 requiring that the Guidelines be treated as mandatory, the policy statements must give way." 18 Hicks, 472 F.3d at 1169, 1173. 8/ 19 20 21
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An application note adds: "Under subsection (b)(2), the amended guideline range determined under subsection (b)(1) and the term of imprisonment already served by the defendant limit 22 the extent to which the court may reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement. Specifically, if the original term of 23 imprisonment imposed was within the guideline range applicable to the defendant at the time of sentencing, the court shall not reduce the defendant's term of imprisonment to a term that 24 is less than the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1)." U.S.S.G. § 1B1.10 app. note 3. 25
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26 The government respectfully disagrees with the decision in Hicks and reserves the right to challenge its holding on appeal. 27
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Even applying Hicks, this Court should exercise its discretion to deny a further

2 sentencing reduction below the amended guideline range. The Ninth Circuit recognized that 3 a defendant seeking a reduced sentence on account of a retroactive guideline amendment "is 4 not entitled to a sentence reduction as a matter of right," but only as "a matter of discretion." 5 Hicks, 472 F.3d at 1172. Even in an original sentencing proceeding, the Guidelines remain 6 influential. See Gall v. United States, 128 S. Ct. 586, 596 (2007) ("to secure nationwide

7 consistency, the Guidelines should be the starting point and initial benchmark" for 8 sentencing); United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) ("[The] continuing 9 duty of district courts to consult the Guidelines is statutory."). 10 11 12 a. In His Plea Agreement, The Defendant Agreed Not To Collaterally Attack His Sentence, So This Motion Seeking Any Additional Reduction In Sentence Should Be Denied. In his plea agreement, the defendant agreed to "waive[] any right to raise on appeal or

13 collaterally attack any matter pertaining to this prosecution and sentence if the sentence 14 imposed is consistent with the terms of this agreement." The defendant has not argued that he 15 was not sentenced consistently with his plea agreement, nor could he make such a claim. 9/ 16 A motion to reduce his sentence constitutes a collateral "attack" on his "sentence," and that 17 motion should be summarily denied based on the plea agreement waiver. But see United States 18 v. Chavez-Salais, 337 F.3d 1170, 1172-73 (10th Cir. 2003). 19 In response to the defendant's collateral attack, the government points towards

20 significant public safety concerns with this defendant, a drug dealer. The defendant has a 21 Guideline Criminal History of IV. It is unlikely that things have changed so significantly over 22 the past two and one half years to persuade this Court that the defendant has abandoned 23 approximately thirteen years of unlawful behavior. 24 25 26 27
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Giving due weight to the "nature and circumstances of the offense and the history and

Especially as to a plea agreement that was extremely beneficial to the defendant.
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1 characteristics of the defendant," "the need for the sentence imposed to reflect the seriousness 2 of the offense," "the need for the sentence imposed to afford adequate deterrence to criminal 3 conduct," "the need for the sentence imposed to protect the public from further crimes of the 4 defendant," and "the need for the sentence imposed to provide just punishment for the 5 offense," as well as the guideline range, a reduction in sentence would be unjustified here. 18 6 U.S.C. § 3553(a)(1) and (2). Likewise, the court must consider "the need to avoid unwarranted 7 sentence disparities among defendants with similar records who have been found guilty of 8 similar conduct." 18 U.S.C. § 3553(a)(6). 10/ 9 Indeed, in 18 U.S.C. § 3582(c)(2), Congress created a "narrow exception to the rule that

10 final judgments are not to be modified." United States v. Armstrong, 347 F.3d 905, 909 (11th 11 Cir. 2003). Section 3582(c)(2) permits a sentencing reduction based on a retroactive guideline 12 only "if such a reduction is consistent with applicable policy statements issued by the 13 Sentencing Commission." In the Sentencing Reform Act, Congress specifically delegated to 14 the Sentencing Commission the authority to determine when, and to what extent, a sentencing 15 reduction is allowed. Under 28 U.S.C. § 994(u), when the Commission amends the guidelines, 16 the Commission "shall specify in what circumstances and by what amounts the sentences of 17 prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). 18 As the Supreme Court has explained, under this provision, "Congress has granted the 19 Commission the unusual and explicit power to decide whether and to what extent its 20 amendments reducing sentences will be given retroactive effect." Braxton v. United States, 21 500 U.S. 344, 348 (1991) (citing § 994(u); emphasis omitted). Pursuant to this authority, the 22 Commission, employing its expertise, has authorized the retroactive application of only a 23 handful of the hundreds of guideline amendments adopted since 1987, and its decision is 24 binding ­ if the Commission does not recognize an amendment as retroactive, courts have no 25 26 27 The government disagrees with the unsupported disparity analysis cited by the defendant in his motion and finds it inapplicable to the instant matter.
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1 authority to rely on it to revisit a final sentence. United States v. Cueto, 9 F.3d 1438, 1441 (9th 2 Cir. 1993). 3 Moreover, consistent with the authority granted in 28 U.S.C. § 994(u), the Commission

4 recently has placed explicit limits on the extent of a sentencing reduction under Section 5 3582(c)(2) ­ limits which were not addressed in Hicks. U.S.S.G. § 1B1.10(b)(1) directs that 6 "[i]n determining whether, and to what extent, a reduction in the defendant's term of 7 imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court 8 . . . shall substitute only the amendments listed in subsection (C) for the corresponding 9 guideline provisions that were applied when the defendant was sentenced and shall leave all 10 other guideline application decisions unaffected." Section 1B1.10(b)(2) sets out specific limits 11 on the extent of sentencing reductions, providing that, with one exception, "the court shall not 12 reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy 13 statement to a term that is less than the minimum of the amended guideline range determined 14 under subdivision (1)." U.S.S.G. § 1B1.10(b)(2)(A). Section 1B1.10(b)(2)(B) further provides 15 that if the defendant's original sentence "constituted a non-guideline sentence determined 16 pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further 17 reduction generally would not be appropriate." (Emphasis added.) Despite this, the sentencing 18 commission suggests that if defendant's original term of imprisonment was less than guideline 19 range applicable to him at the time, then this court could take that reduction and apply it to the 20 amended guideline range. U.S.S.G. § 1B1.10(b)(2)(B). As discussed in application note three 21 to U.S.S.G. § 1B1.10, if defendant's original sentence represented a downward departure of 22 20% below guideline range, a reduction to term that is 20% below the amended guideline 23 range would be a "comparable reduction." Thus, in the Commission's view, the extent of a 24 sentencing reduction under Section 3582(c)(2) should be limited to the amended guideline 25 26 27
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1 range or a "comparable" reduction.

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In this case, no reduction should occur anyway

2 because defendant's original sentence was a non-guideline sentence, but if any reduction is 3 employed, it should be very minimal in light of the Commission's statements. 12/ 4 These judgments of the Sentencing Commission deserve respect. It is appropriate to

5 abide by these restrictions, given that the Commission has properly determined that Section 6 3582(c)(2)'s exception to the general rule of finality in criminal litigation should extend only 7 to application of the newly amended guideline, not to relitigation of other aspects of the 8 sentence. See U.S.S.G. § 1B1.10(a)(3) (proceedings under Section 3582(c)(2) "do not 9 constitute a full resentencing of the defendant"). Adherence to the limits imposed by the 10 Commission will also avoid disparity in sentencing among similarly situated defendants. See 11 18 U.S.C. § 3553(a)(6). 12 Applying the above principles, no further reduction is warranted. First, defendant was

13 given a non-guideline sentence and therefore "a further reduction would not be appropriate" 14 under U.S.S.G. § 1B1.10(b)(2)(B) The defendant was sentenced to 63 months which is more 15 than an eight-year reduction (far more than 20%) from the low-end of the original guideline 16 sentence of 168-210 months. Defendant's sentence already reflects a "comparable reduction." 17 U.S.S.G. § 1B1.10, application note 3. 18 III. 19 20 21 This language in the policy statement, refined in the amendment which becomes 22 effective March 3, 2008, casts the Court's error in Hicks in sharp relief. Even more explicitly than before, the amended policy statement makes clear that a sentence reduction is authorized, 23 with one exception, only to the bottom of the amended guideline range. It is plain that the Sentencing Commission is exercising its power, granted in 28 U.S.C. § 994(u), to regulate the 24 limit of a sentencing reduction, and that this statutory provision and this limitation are unaffected by the remedial opinion in Booker. It is for this reason that the government specifically reserves 25 its right to contest the viability of Hicks, which never addressed the significance of Section 994(u). 26 12/ The government has already addressed the potential reduction earlier in this pleading. 27
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CONCLUSION In light of the factors set forth in 18 U.S.C. § 3553(a), the Court's assessment at the

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1 original sentencing that the defendant should be sentenced within the allowable Guideline 2 range would be applicable in this situation as nothing has changed except for the calculation 3 of the Offense Level. Accordingly, the government recommends that, consistent with the 4 statutory scheme and the policy statements of the Sentencing Commission, defendant be 5 sentenced to no less than 51 months. 6 7 8 9 10 11 12 13 14 CERTIFICATE OF SERVICE 15 I hereby certify that on April 18, 2008, I electronically transmitted the attached 16 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 17 of Electronic Filing to the following CM/ECF registrant: 18 19 Bruce E. Blumberg Blumberg and Associates 20 45 West Jefferson, Suite 210 Phoenix, Az. 85003 21 22 23 s/Carol Strachan-Noonan Carol Strachan-Noonan 24 Legal Assistant U.S. Attorney's Office 25 26 27
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Respectfully submitted this 18th day of April, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona s/Howard D. Sukenic HOWARD D. SUKENIC Assistant U.S. Attorney

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