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United States v. Davis

September 1, 2009

UNITED STATES OF AMERICA
v.
MARK DAVIS



The opinion of the court was delivered by: Irenas, Senior District Judge

HONORABLE JOSEPH E. IRENAS

OPINION

Presently before the Court is the Motion by Defendant Mark Davis ("Davis") for a Sentence Reduction pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, Davis's Motion will be granted.*fn1

I.

The Court will review the background of this case only insofar as necessary to resolve the present motion. On August 16, 2006, Davis pleaded guilty to three criminal offenses: (1) conspiracy to distribute and possession with intent to distribute more than five kilograms of cocaine; (2) conspiracy to distribute and possession with intent to distribute more than 50 grams of crack cocaine; and (3) possession of firearms by a convicted felon.

At sentencing, the Court made a preliminary determination that the applicable total offense level ("TOL") for Davis's conduct was 35, and that his criminal history category ("CHC") was VI. The Court also determined that Davis met the definition of a career offender under U.S.S.G. §4B1.1(a), and that his applicable offense level under §4B1.1(b) was 34.*fn2 Thus, this case presented the rather rare instance where the TOL calculated by looking to the offense characteristics exceeded the TOL applicable under §4B1.1. As such, Davis's final TOL was 35. See U.S.S.G. §4B1.1(b) ("[I]f the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply.").

The Government moved for a downward departure pursuant to U.S.S.G. §5K1.1. The Court granted that motion and departed downwards five levels, to level 30. For offenders with a TOL of 30 and a CHC of VI, the applicable advisory sentencing range was 168 to 210 months.*fn3 The Court sentenced Davis to a prison term of 174 months.

Davis now moves for a sentence reduction pursuant to § 3582(c)(2).

II.

Under 18 U.S.C. § 3582(c)(2), the Court may reduce a defendant's prison sentence if the sentence was imposed "based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." On May 1, 2008, Amendment 715 to the Guidelines became effective, thereby "revis[ing] the manner in which combined offense levels are determined in cases involving cocaine base ("crack cocaine") and one or more other controlled substance." U.S.S.G. app. C, Amend. 715. "Amendment 715 instructs that, once a complete offense level is reached using the equivalent amount of marijuana for all controlled substances, the court should subtract two levels," except in certain circumstances.*fn4 United States v. Frazier, No. 09-6284, 2009 WL 2256954, at *1 (4th Cir. Jul. 29, 2009). Amendment 715 applies retroactively, United States v. Harris, No. 08-2478, 2009 WL 1483145, at *1 n.3 (3d Cir. May 28, 2009), but reduction of an eligible defendant's sentence "is not automatic and is left within the discretion of the District Court[,]" United States v. Nabried, 310 F.App'x 529, 531 (3d Cir. 2009).

III.

Davis contends that he should be resentenced based on a TOL of 33, reduced from 35. (Def's Br. 2 (citing U.S.S.G. §2D1.1, app. note 10(D)(i)). The Government concedes that Davis is eligible for a sentence reduction. However, the parties disagree with respect to whether Davis should receive a reduction of two levels (to 33) or just one level (to 34).

The Government contends that Davis's status as a career offender under §4B1.1 limits the extent of the sentence reduction for which he would otherwise be eligible. The Court agrees.

The proper procedure for a § 3582 resentencing is to "determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines . . . had been in effect at the time the defendant was sentenced." U.S.S.G. § 1B1.10(b)(1); see United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) ("[T]he court must substitute the amended guideline range for the originally applied guideline range and determine what sentence it ...


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