United States v. Philbrick

2008 DNH 119

• Court: District Court, D. New Hampshire
• Decided: June 23, 2008
• Docket: 06-CR-035-SM
• Status: Published

Opinion

United States v. Philbrick 06-CR-035-SM 06/23/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-cr-35-2-SM Opinion No. 2008 DNH 119 Seriio Philbrick.

O R D E R

Defendant moves to amend his sentence based on the United

States Sentencing Commission's retroactive amendment of the

"crack" cocaine guideline (Amendments 706 and 711), effective

March 3, 2 008.

At sentencing, defendant's total offense level and criminal

history category were properly calculated under the Sentencing

Guidelines to be TOL 25 and CHC I, respectively. The court then

departed downward two levels upon the government's motion, filed

under U.S.S.G. § 5K1.1, resulting in TOL 23, CHC I, and a range

of 46 to 57 months imprisonment.

After considering defendant's motion for a sentence

different from that counseled by the Guidelines, and the factors

set out in 18 U.S.C. § 3553(a), the court imposed a sentence of,

inter alia. 37 months imprisonment. The court's specific reasons for imposing a non-guideline sentence included, primarily, the

following factors. Defendant was young (20) at the time of the

offense, had an otherwise clean criminal record, a history of

solid employment, and academic and personal achievement.

Defendant had also demonstrated significant progress toward

rehabilitation and strong rehabilitative potential during the

eighteen months from his arrest until sentencing. Defendant,

during that time maintained steady employment and strictly

complied with the conditions of release. He plainly had a strong

family and community support network as well, which also enhanced

his prospects for successful rehabilitation. Finally, the court

took note of the Sentencing Commission''s then-proposed amendment

to address what most would agree was an unjustifiable and gross

disparity between the treatment of powder and crack cocaine

offenses under the Guidelines. The court observed that, while

not controlling, the Commissions recognition of that unwarranted

disparity supported a Booker1 sentence as well, particularly

"where there are so many other factors that, hn combination.

would certainly warrant a Booker sentence."

Defendant now seeks the benefit of the retroactive reduction

in the crack guideline, in the form of a further reduction of his

1 United States v. Booker. 543 U.S. 220 (2005).

2 sentence by 20% — representing a reduction from the low end of

the newly applicable guideline range occasioned by the

retroactive reduction of the crack guideline, that is consistent

with the reduction under Booker, from the low end of the

originally calculated guideline range. That is, the original

calculation should be retroactively reduced from TOL 23/CHC I

(46-57 mos.) to TOL 21/CHC I (37-46 mos.), and the sentence

previously imposed (37 mos.) should likewise be reduced by about

20% — the amount the bottom of the range has been retroactively

lowered.

The amended policy statement issued by the Commission

relative to reducing sentences to imprisonment as a result of a

retroactively applied amended guideline range, as we have here,

provides, in pertinent part, as follows:

In General. In a case in which a defendant is serving a term of imprisonment, and the guidelines range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendants' term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.

U.S.S.G. § 1B1.10(a) (1) .

3 Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guidelines range determined under subdivision (1) of this subsection may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B).

The government opposes defendant's motion on grounds that

the court already took into account the anticipated crack

guideline reduction when it fashioned its Booker sentence, so no

further reduction is warranted. Defendant counters that while

the court explicitly did take the then-proposed reduction into

account, several other factors also animated the decision to

impose a Booker sentence, so the full reduction contemplated

under the applicable policy statement should obtain.

To the extent the government says no further reduction is

warranted because the then-proposed change in the crack guideline

was taken into account in fashioning the Booker sentence imposed,

it overlooks the fact that the 37 months imposed (under Booker)

is now equivalent to the bottom of the newly-applicable guideline

range. So, leaving the sentence as is would effectively deprive

4 defendant of the sentence reduction allowed in substantial part

on grounds unrelated to the then-proposed crack guideline

amendment.

It is not possible to quantify with precision just what

mathematical fraction accurately reflects that part of the

reduced sentence attributable to the anticipated crack guideline

adjustment and what part is attributable to the other factors

noted by this court. Suffice it to say that part of the Booker

reduction did relate to the anticipated amendment, but certainly

not all, and certainly not none, and not even most.

The sentence imposed under Booker was nine months lower than

the bottom of the then-applicable guideline range (37 mos.

instead of 46 mos). Now, TOL 21/ CHC I is the correct

recalculated advisory guideline range, which provides for a low

end of 37 months imprisonment. Considering that retroactively

adjusted advisory range (which fully accounts for the amendment

as a factor in determining a variant sentence), a further

reduction is warranted to account for the other § 3553(a) factors

upon which the court previously based the variant sentence

imposed. That reduction, the amended policy statement wisely

counsels, should generally be "comparably less" than the amended

5 guideline range when compared to the reduction from the

originally calculated guideline range.

Conclusion

Defendant's motion is granted. An amended judgment shall be

entered imposing a sentence of 30 months imprisonment. That

sentence constitutes a reduction roughly approximate to the

guidelines-counseled reduction, and also reflects the variant or

Booker sentence the court would most likely have imposed on June

18, 2007, had the crack guideline amendment been effective and

applicable to defendant's case.

SO ORDERED.

Steven J./McAuliffe Chief Judge

June 23, 2008

cc: Aixa Maldonado-Quinones, AUSA William E. Morse, AUSA Jeffrey S. Levin, Esq. U.S. Probation U.S. Marshal