The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Friday, 27 January, 2012 03:41:37 PM Clerk, U.S. District Court, ILCD
This case is before the court for ruling on the Amended Motion to Reduce Sentence (#47) filed by Defendant, LC Bell. After carefully considering the arguments of the parties and the applicable law, this court concludes that Defendant is eligible for a reduction in his sentence. However, this court further concludes that the reduction should be limited due to Defendant's extensive criminal history and the need to protect the public. The need to protect the public is based, in part, on Defendant's post-sentencing conduct of possessing a shank in prison. Accordingly, Defendant's Amended Motion to Reduce Sentence (#47) is GRANTED in part and DENIED in part. Defendant's sentence will be reduced. However, instead of the 125 month sentence requested by Defendant, this court hereby reduces Defendant's sentence from 150 months to 137 months.
On March 3, 2007, Defendant was charged by indictment with one count of knowingly possessing five grams or more of a mixture and substance containing cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). After this court denied Defendant's Motion to Suppress Evidence, Defendant entered a conditional plea of guilty on June 26, 2007, pursuant to a written plea agreement.
On November 19, 2007, this court held a sentencing hearing. There was no dispute that the statutory mandatory minimum sentence for Defendant's crack cocaine offense was 120 months. Defendant's sentencing guideline range was calculated as 120 to 150 months. This court sentenced Defendant to a term of 150 months in the Federal Bureau of Prisons for the crack cocaine offense and a concurrent term of 120 months for the firearm offense. Defendant appealed the denial of his Motion to Suppress. On November 5, 2009, the Seventh Circuit Court of Appeals entered an Opinion. United States v. Bell, 585 F.3d 1045 (7th Cir. 2009). The Seventh Circuit affirmed this court's ruling denying the Motion to Suppress, based upon the good faith exception to the exclusionary rule. Bell, 585 F.3d at 1053-54. The Seventh Circuit also ordered a limited remand for this court to determine whether it would have issued a different sentence in light of the United States Supreme Court's recent decision in Kimbrough v. United States, 552 U.S. 85 (2007). Bell, 585 F.3d at 1054-55.
Following the limited remand, this court ordered the parties to state, in writing, a position regarding whether a different sentence would have been imposed if this court had considered the crack/cocaine powder sentencing disparity during sentencing. After the parties complied with this order, this court entered an Opinion (#38). This court quoted one of the Government's arguments, as follows:
A review of the PSR reveals that a recitation of the defendant's criminal history requires 33 separate paragraphs. It not only involves four prior convictions for controlled substance offenses, but adjudications or convictions for Criminal Sexual Abuse, Criminal Trespass, Burglary, and Armed Robbery. The instant offense is the defendant's fifth trip to prison after receiving nine years for the Armed Robbery. Thus, it is not surprising that the probation officer recommended a 150-month sentence as the only appropriate sentence for a defendant with such an "abysmal" criminal record. This Court agreed, noting that the defendant had violated the law in "every conceivable way," and that his criminal record was "frightening." Given the defendant's criminal record and the Court's comments at sentencing, this Court would have imposed the same 150-month sentence regardless of its consideration of the crack/powder cocaine sentencing disparity.
This court has carefully considered the arguments of counsel and the record in this case. This court agrees with the Government that this court's decision to impose a 150-month sentence was unrelated to the type of cocaine involved and was, instead, based upon Defendant's extensive criminal history, as well as a consideration of the other factors set out in 18 U.S.C. § 3553(a). After careful review, this court finds that 150 months is an appropriate sentence for Defendant and this court would not resentence Defendant based upon the decision of the United States Supreme Court in Kimbrough.
This court therefore advised the Seventh Circuit Court of Appeals that it would have imposed the same sentence even if it had known that it could take the crack/cocaine powder disparity into consideration in imposing sentence. This court accordingly declined to resentence Defendant based upon Kimbrough. On December 29, 2010, the Seventh Circuit issued its mandate and affirmed this court's judgment.
MOTION TO REDUCE SENTENCE
On July 22, 2011, Defendant filed a pro se Motion to Reduce Sentence (#45) based upon the 2011 retroactive amendment to the sentencing guideline range regarding crack cocaine sentencing. This court entered a text order and appointed the Federal Defender for the Central District of Illinois to represent Defendant in this matter.
On November 18, 2011, Defendant, through counsel, filed an Amended Motion to Reduce Sentence (#47). Defendant stated that, pursuant to retroactive Amendment No. 750 to the United States Sentencing Guidelines (U.S.S.G.), Defendant's sentencing guideline range has been reduced to 120 to 125 months. Defendant stated that a sentence at the top of this range ...