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December 8, 1993



The opinion of the court was delivered by: MILTON I. SHADUR

On November 15, 1993 Timothy Dalmasso ("Dalmasso") filed a self-prepared Motion To Reduce Term of Imprisonment, based on a recent amendment (effective November 1) to the Sentencing Guideline ("Guideline") that had originally set the range for sentencing in his case. Because that amendment was expressly made retroactive in its application, this Court promptly (on November 17) issued the attached Memorandum Order containing two requests:

1. that all parties--not only Dalmasso but also his co-defendant Anthony Gaines ("Gaines") and Assistant United States Attorney Phillip Guentert ("Guentert")--submit "calculations as to how the new Guideline calculation affects the relevant Guideline ranges and the resulting sentences for Dalmasso and for Gaines (if the latter elects to seek relief)," and
2. that prosecutor Guentert "state (1) the government's position as to whether relief should be granted to either or both defendants and (2) the reasons underlying that position."

 At this point the requested submissions have been received from all parties, and the question of potential reductions in the Dalmasso and Gaines sentences by reason of the amended Guideline is ready for decision.

 With commendable forthrightness, prosecutor Guentert's Memorandum has also confirmed the retroactivity of amended Guideline § 2D1.1(c), and he has provided the calculations that would be appropriate if the amended provisions were to be applied to either or both defendants here. In that respect Guideline § 1B1.10(b), part of the Policy Statement dealing with retroactive amendments, says that "the Court should consider the sentence that it would have originally imposed had the Guidelines, as amended, been in effect at that time." Because 18 U.S.C. § 3582(c)(2) does permit the reduction of a sentence under the present circumstances (indeed, such a reduction may be ordered even on a court's own motion), this Court turns to the task.

 Timothy Dalmasso

 In accordance with Dalmasso's plea agreement entered into under Fed. R. Crim. P. ("Rule") 11(e)(1)(C), the government moved for a downward departure (1) below the statutory minimum sentence established by 21 U.S.C. § 841 and (2) to a sentence equal to 50% of the low end of the applicable Guideline range. After conducting a full sentencing hearing, this Court accepted that Rule 11(e)(1)(C) agreement and, because Dalmasso's then-existing adjusted offense level of 28 corresponded to a sentencing range of 78 to 97 months, imposed a custodial sentence of 39 months.

 Now the Guideline amendment bases the offense level for a crime involving LSD (that was the gravamen of Dalmasso's and Gaines' offenses) on the number of doses of that controlled substance (rather than its actual weight, including the weight of the carrier medium). Because the LSD doses that were ascribable to Dalmasso aggregated 1225 in number, *fn1" that number now equates to 490 milligrams of LSD, which corresponds to an offense level of 20. That level then reduces to 18 because of Dalmasso's acknowledged acceptance of responsibility.

 That lower adjusted offense level in turn translates into a Guideline range of 27 to 33 months. And if the newly amended Guideline had been in effect at the time of sentencing, this Court's acceptance of the Rule 11(e)(1)(C) plea agreement would thus have called for a custodial sentence of 50% of the low end of that range: 13-1/2 months.

 Because Dalmasso has been in custody since July 15, 1992, he has already served more than that 13-1/2 month time frame. This Court has taken into account all aspects of Dalmasso's original presentence investigation report and the matters developed in the sentencing hearing, as well as all of the factors specified in 18 U.S.C. § 3553(a), and it determines that justice is well served by granting Dalmasso the full relief based on the current amendment. It accordingly reduces Dalmasso's custodial sentence to time served, with all other aspects of his original sentence to remain unchanged.

 Anthony Gaines

 In response to this Court's Memorandum Order, Gaines has also moved for resentencing through Cincinnati lawyer Patrick Brown, Esq. *fn2" As explained a bit later, that motion is incorrect in one significant respect (an aspect on which the government's memorandum has the matter right). But in all events Gaines too is entitled to relief--though not as much as is mistakenly sought by his counsel.

 Because Gaines was substantially more involved in the LSD trade than Dalmasso, the plea agreement that he and his counsel originally struck with the government was less favorable. Also entered into under Rule 11(e)(1)(C), it called for a departure downward from the mandatory minimum sentence and the applicable Guideline range to a ...

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