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United States of America v. andre Ware

September 21, 2012

UNITED STATES OF AMERICA,
APPELLANT
v.
ANDRE WARE UNITED STATES OF AMERICA,
v.
ALLEN STRATTON A/K/A NECK BONE ALLEN STRATTON,
APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-08-cr-00625-001) District Court Judge: Honorable Jan E. DuBois On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-99-cr-00326-001) District Court Judge: Honorable William H. Yohn, Jr.

The opinion of the court was delivered by: Garth, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) September 11, 2012

Before: SMITH, CHAGARES and GARTH, Circuit Judges.

Submitted Pursuant to Third Circuit LAR 34.1(a) September 11, 2012

Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

OPINION OF THE COURT

In these two appeals, we are called upon to resolve the alleged tension between the sentencing statutes and the Sentencing Guidelines. Andre Ware and Allen Stratton, both serving sentences for various offenses involving crack cocaine, each moved in their respective cases for reductions in their sentences following a retroactive amendment to the Federal Sentencing Guidelines applicable to crack cocaine offenses.*fn1

District Court Judge Dubois, presiding over Ware‟s case, granted his motion and reduced his sentence from 128 months to 84 months. District Court Judge Yohn, presiding over Stratton‟s case, denied his motion to reduce his sentence from 188 months. The government appealed in Ware‟s case. Stratton appealed from his sentence in his case.

Both cases present the same issue: whether the Sentencing Guidelines amendments at issue apply to defendants who, like Ware and Stratton, were originally sentenced on the basis of variances (Ware) or departures (Stratton) from a guideline range not affected by the amendments. We hold that the Sentencing Guidelines amendments do not. Thus, we will reverse the District Court in Ware‟s case and affirm the District Court in Stratton‟s case.

I

In August 2009, Andre Ware was convicted of several drug offenses involving crack cocaine. His initial offense level under the Sentencing Guidelines was 18, and his criminal history category was VI. Because Ware qualified as a career offender, his offense level was adjusted to 34, and his criminal history category remained VI. Under that level and category, the guideline range for Ware‟s sentence was 262 months to 327 months‟ imprisonment. At sentencing, the District Court indicated that it felt that this range was too high and granted a downward variance, sentencing him to 128 months‟ imprisonment.

In 2010, the Sentencing Commission promulgated an amendment to the Sentencing Guidelines that, effective November 1, 2011, reduced the base offense levels for crack cocaine offenses by increasing the weight of drugs associated with each offense level. U.S.S.G., App. C, amd. 750.

Simultaneously, the Commission also promulgated a further amendment, Amendment 759, also effective November 1, 2011, adding the relevant portions of Amendment 750 to the list of amendments that may trigger a retroactive sentence reduction. In the course of making these amendments, the Commission also modified the Commentary to its policy statement ...


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