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United States v. Brown

August 6, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EDDIE L. BROWN, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

This case is before the Court on the Defendant's amended motion under 18 U.S.C. § 3582 to reduce his sentence.

I. BACKGROUND

Defendant Eddie L. Brown pleaded guilty on April 28, 1998, to one count of possession of cocaine base ("crack") with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). At sentencing, the Defendant was held accountable for 285.25 grams of crack cocaine and 1.75 grams of powder cocaine. Based on the drug equivalency table in the Guidelines then in effect, these amounts equated to 5,705.35 kilograms of marijuana, resulting in a Base Offense Level of 34. The Defendant's offense level was reduced by three levels for acceptance of responsibility.

The Government notes the Defendant's Criminal History Category was calculated at VI. His criminal history included two prior felony drug convictions, a felony conviction for unlawful use of a firearm, misdemeanor convictions for possession of marijuana, and a felony conviction for sexual assault. The Defendant's total criminal history score was 12, and he committed the crack offense while on parole and within two years of release from imprisonment.

Based on a Total Offense Level of 31 and Criminal History Category of VI, the Defendant's guideline range was 188 to 235 months. The Court sentenced the Defendant to 188 months imprisonment.

The Government opposes the Defendant's motion on the basis of his extensive criminal history. It asserts that Defendant represents a continuing threat to the public. The United States Probation Office has no opposition to the motion.

II. ANALYSIS

(A).

The Defendant moves for a reduction of sentence under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides:

In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently 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 they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Section 1B1.10(a)(1) of the Guidelines provides that if a defendant's guideline range has been subsequently lowered because of an amendment, the court may reduce that defendant's prison term pursuant to section 3582(c)(2). "[P]roceedings under 18 U.S.C. § 3582 and this policy statement do not constitute a full resentencing of the defendant." See U.S.S.G. § 1B1.10(a)(3).

The Government notes that the relevant amendments are Amendment 706, effective November 1, 2007, and Amendment 715, effective May 1, 2008, which reduced the base offense level for most cocaine base offenses. On December 11, 2007, and May 1, 2008, respectively, the Commission added Amendment 706 and Amendment 715 to the list of amendments stated in Section 1B1.10(c), which may be applied retroactively, effective March 3, 2008, and May 1, 2008, respectively.

Pursuant to Amendment 706, the Sentencing Commission generally reduced by two levels the offense levels applicable to crack cocaine offenses. In Amendment 711, the Commission made conforming amendments to the drug conversion chart which is used when the offenses of conviction involved cocaine base ("crack"), as well as other substances. Amendment 715 modifies the Commentary to U.S.S.G. ยง 2D1.1 to revise the manner in which combined offenses are calculated ...


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