MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
Now before the Court is the United States of America's sentencing memorandum (Doc. 54) and defendant, Jonathan Lucas' sentencing memorandum (Doc. 57). Both parties agree that defendant should be sentenced again pursuant to the Fair Sentencing Act of 2010 ("FSA"); however they differ as to what defendant's sentence should be. Defendant also filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in a related civil case, 11-cv-00829-DRH (Doc. 1). Both parties agreed to submit the matter to the Court without a hearing.
As in the typical sentencing matter, the Court must determine the correct guideline treatment as promulgated by the United States Sentencing Commission as the starting point of the analysis. However, that guidance is simply advice and this court has the discretion to vary, either up or down, from the sentence called for by those guidelines and the court must engage in such an analysis to determine a sentence that is sufficient but not greater than necessary in its final decision.
On August 19, 2009, defendant was charged with one count of distribution of cocaine base also called "crack cocaine" in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On June 7, 2010, defendant pleaded guilty to the count of selling 26.9 grams of crack cocaine, framing the statutory penalties. On August 3, 2010, the FSA of 2010 increased the statutory threshold for crack cocaine from 5 grams of cocaine base to 28 grams of cocaine base necessary to impose the penalties under 21 U.S.C. § 841 (b)(1)(B)(iii).
Defendant's counsel argued that under the FSA, no mandatory minimum applied to defendant. The government argued that defendant's crime occurred before the FSA and under then current Seventh Circuit case law at the time, the FSA did not apply retroactively to crimes committed before its passage. On September 9, 2010, the Court sentenced defendant to 120 months' imprisonment and eight years' supervised release pursuant to the earlier Sentencing Reform Act of 1984.
On June 21, 2012, the United States Supreme Court decided Dorsey v. United States, 132 S.Ct. 2321 (2012). In Dorsey, the Court, reversing the 7th Circuit, held that the FSA's new mandatory minimum sentencing provisions applied to all sentences imposed on or after August 3, 2010, regardless of when the offense conduct took place. Id.
In this case, the FSA applies to Lucas, who was sentenced after the FSA's enactment. The crack cocaine quantity to which Lucas is accountable fails to trigger a post-FSA statutory minimum. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006 & Supp. V 2011) (prescribing no mandatory minimum for offenses less than 28 grams of crack cocaine). Lucas' relevant conduct was determined to be 53.8 grams of crack cocaine, based on two sales. Relief is available to the defendant based on the statutory parameters and the sentence previously imposed is hereby VACATED.
On August 21, 2012, the Court ordered the parties to brief the issue of resentencing, to inform the Court of defendant's adjustment to corrective treatment, address the sentencing factors, and defendant's character and history in light of his criminal history. The parties were directed to address whether the Court should consider a variance from the sentencing guidelines in light of defendant's criminal history.
The government, in its sentencing memorandum (Doc. 54), agreed that defendant should be resentenced under the FSA, and that his guideline range is 57-71 months. However, the government urged the Court to vary from the guideline range, based on the factors in 18 U.S.C. § 3553 (a), and sentence defendant to 87 months' imprisonment.
In his sentencing memorandum (Doc. 57), defendant urges the Court to resentence him to the lowest possible sentence of 57 months' imprisonment. Defendant's reasoning is that before Dorsey was decided, he received the shortest possible sentence the Court could give him, and therefore, under the newly calculated guidelines, a sentence at the low end would be reasonable and appropriate.
Both parties agreed a hearing was not necessary.
As noted above, the starting point for the Courts analysis is a determination of the Sentencing Commission's advice to this Court by way of calculating the guideline treatment. In the recent Supreme Court case of Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072 (June 10, 2013), the Court, reversing the 7th Circuit, ruled that should the use of the commission's manual in effect at the time of sentencing differ to the detriment of the defendant from that which was in effect at the time of the commission of his crime, the earlier manual must be utilized in order to avoid an ex post facto deficiency. The commission's policies parallel the statutory discussion which has ensued herein, although they actually were out in front in this instance rather than following and so the current edition of the manual actually inures to the defendant's benefit rather than his determent and so shall be used and avoids the Peugh issue.
In order to determine the advice from the commission to this Court in the sense of the guideline treatment of Mr. Lucas's case, one must focus on the relevant conduct of 53.8 grams of crack cocaine (two sales to the undercover agent of 26.9 grams each), turning to Section 2D1.1(7) of the 2012 Guideline Manual wherein the advice of the commission is to consider a base offense level of 26. No enhancements are applicable and the defendant is eligible, as before, for acceptance of responsibility credit under both (a) and (b) of Section 3E1.1, reducing the offense level, by the commission's advice by three levels. The total offense level resulting is a 23. The defendant's criminal history category is a III. The criminal history category is derived from an armed robbery conviction and a theft conviction as a juvenile, only the latter of which was accounted for as single point event. Furthermore, the defendant had six felony drug convictions as an adult, all of which counted as single point convictions. He had two other misdemeanor convictions and a felony conviction for which no points were assessed. Three of the single points were discounted upon the commission's advice because it has determined that only four such single point convictions should count against a defendant. However, the defendant was on probation at the time of the instance offense, so the commission recommends that two points be added to the criminal history score to account for that fact. The total score of six results then in the commission's account of the category of III. The Court notes that this calculation was not disputed by either party, nor is the following conclusion. The advice to this Court is that it consider a custodial range of 57 to 71 months, a fine range of $10, 000.00 to $2, 000, 000.00, a supervised release range of at least 6 years, and further that the Court not consider a term of probation, which is prohibited by statute.
The statutory terms are a term of imprisonment of not more than 30 years, at least 6 years of supervised release thereafter, a fine of not more than $2, 000, 000.00, as well as a ...