United States v. Pierce

• Court: District Court, D. New Hampshire
• Decided: October 21, 2010
• Docket: 00-CR-066-SM
• Status: Published

Opinion

United States v. Pierce 00-CR-066-SM 10/21/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. 00-cr-66-l-SM Opinion No. 2 010 DNH 185 Keone Pierce, Defendant

O R D E R

Following the decision in United States v. Caraballo, 552

F.3d 6 (1st Cir. 2008), it was generally thought that a defendant

previously sentenced as a career offender under the Sentencing

Guidelines was not eligible for the downward sentence adjustment

allowed under the later-enacted, and retroactive, crack cocaine

guideline amendments. See 28 U.S.C. § 994(u); U.S.S.G. app. C,

amend. 706 and 713. In United States v. Cardosa, 606 F.3d 16

(1st Cir. 2010), however, the court of appeals construed and

clarified its decision in Caraballo, explaining that "where the

defendant's existing sentence was ultimately determined by the

old crack cocaine guidelines rather than by the career offender

guideline, resentencing [under the amendments] is within the

discretion of the district court." Id., at 21 (emphasis in

original). So, where, as here, the career offender guidelines applied

in determining defendant's sentencing range, but the court

imposed a lower sentence than those guidelines provided for, and

it is not clear from the record whether the imposed sentence was

"ultimately determined" by the old crack guidelines (as that

phrase is used in Cardosa) or the career offender guidelines, the

sentencing judge should determine whether the imposed sentence

was or was not ultimately "based on" the crack cocaine

guidelines. If it was, then the defendant is at least eligible

for the downward adjustment.

In this case, before Cardosa was decided, I denied

defendant's motion for sentence relief under the crack cocaine

amendments, on grounds that defendant was ineligible, having been

previously sentenced as a career offender, albeit to a sentence

involving a downward departure, based upon his comparatively less

serious criminal history. The imposed sentence, however, was

"ultimately determined" (in a sense) by the crack cocaine

guidelines then in effect (i.e., the imposed sentence

corresponded to the range that would have applied absent

defendant's career offender status). Under Cardosa's approach to

resolving whether the imposed sentence was "ultimately

determined" by the old crack amendment guidelines, it seems plain

2 that it was. Accordingly, defendant is entitled to consideration

under the retroactive guidelines amendments.

The government shall, within ten (10) days of the date of

this order, file an objection, if it has one, to the court's

granting defendant relief under the retroactive guidelines

amendments.

SO ORDERED.

Streven J. UdcAuliffe Ohief Judge

October 21, 2010

cc: Keone Pierce, pro se Mark A. Irish, AUSA U.S. Marshal U.S. Probation