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United States of America v. Eric N. Powell

November 16, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ERIC N. POWELL, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Friday, 16 November, 2012 02:32:29 PM Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Defendant Eric N. Powell's Motion (d/e 299), interpreted as a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense, and Defendant's supplemental Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (d/e 306). Because Defendant was sentenced to the statutory mandatory minimum, he is not eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2). Therefore, Defendant's Motions are DISMISSED for lack of subject matter jurisdiction.

BACKGROUND

In June 1999, Defendant pleaded guilty to one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846. The offense carried a 20-year statutory mandatory minimum penalty. See 21 U.S.C. § 841(b)(1)(A) (2000) (providing for a 20-year minimum sentence where the violation involved more than 50 grams of crack and was committed after a prior conviction for a felony drug offense has become final).

At Defendant's March 2000 sentencing hearing, Defendant was held accountable for at least 500 grams but less than 1.5 kilograms of cocaine base (crack). This resulted in a Base Offense Level of 36. After enhancements for possession of a dangerous weapon, Defendant's role in the offense, and obstruction of justice, and after an adjustment for acceptance of responsibility, Defendant's Total Offense Level was 40. With a Criminal History Category of I and a Total Offense Level of 40, Defendant's sentencing guideline range was 292 to 365. The Court departed from the bottom of the guideline range and imposed a sentence of 255 months.

In January 2008, Defendant filed a Motion for Appointment of Counsel to File Retroactive Amendment to 18 U.S.C. § 3582(c)(2) and To Proceed In Forma Pauperis (d/e 273). The Court appointed the Federal Public Defender to represent Defendant.

Counsel filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense. See d/e 277. In the Motion, Counsel noted that under Amendment 706, made retroactive by Amendment 711, Defendant's new guideline range was 235 to 293 months (Amended Offense Level of 38 and Criminal History Category of I). See d/e 277. Counsel further noted, however, that because of the 240-month mandatory minimum, Defendant's guideline range became 240 to 293 months. Counsel requested that the Court enter an Amended Judgment and Conviction sentencing Defendant to 240 months' imprisonment. On March 31, 2008, the Court granted the Motion. See Text Order, March 31, 2008; Order (d/e 278).

On September 14, 2011, Defendant filed a Motion seeking resentencing using a 1:1 crack/powder ratio. See d/e 299. This Court treated the Motion as a request for retroactive application of the sentencing guidelines to a crack cocaine offense and, pursuant to Administrative Order 11-MC-2042, appointed the Federal Defender to represent Defendant. See Text Order of September 14, 2011.

On November 2, 2011, Counsel filed a Motion to Withdraw (d/e 305). Counsel asserted Defendant was ineligible for a reduced sentence because Defendant was subject to the 240-month statutory mandatory minimum. On November 3, 2011, this Court granted the motion to withdraw and gave Defendant until December 7, 2011 to file a supplemental or new motion.

On December 5, 2011, Defendant filed a Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (d/e 306).

ANALYSIS

Defendant asserts he is entitled to a reduced sentence because, under the Fair Sentencing Act as amended, he would only be subject to a mandatory minimum sentence of 10 years. But see 21 U.S.C. 841(b)(1)(A) (2010) (providing for a 20-year minimum sentence where the violation involved more than 280 grams of crack and was committed after a prior conviction for a felony drug offense has become final). Defendant further asserts that under the ...


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