Essentially, the defendant argued that the statutory mandatory minimums promulgated by the FSA applied to him, making him eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Court found that the defendant satisfied the first sentence-reduction eligibility requirement because his sentence had been based on the Guidelines. The plea agreement had said that the parties agreed to recommend that the district court impose a sentence within the guideline range. During the sentencing hearing, the district court had said that “[t]he parties agree to recommend that the Court impose a sentence within the range determined pursuant to the advisory sentencing guidelines” and that “the appropriate sentencing range under the guidelines according to the sentencing table is 130 to 162 months.” The district court started with the drug-quantity table in 2D1.1. The court then relied on 3E1.1 and 5K1.1, cited in the plea agreement, to calculate the defendant’s advisory range as 130 to 162 months; the district court sentenced the defendant to 130 months. This imposition of sentence pursuant to the plea agreement and derived from an advisory range under the Guidelines means the sentence was based on an advisory range.
COA then looked to 5G1.1 to consider impact of mandatory minimum. The COA found that the section was silent as to which mandatory minimums to apply, and that the Supreme Court has not spoken on the issue.
The court noted that under the gov's interpretation, defendants whose original advisory ranges were slightly above the old statutory floor, but who did not receive substantial-assistance downward departures, would be eligible for sentence reductions under § 3582(c)(2). But defendants whose original ranges were at the statutory floor, who rendered substantial assistance, would not be eligible for reductions. "Such perverse results are clearly inconcsistent with other Guidelines provisions." Here, plugging the new mandatory minimums and amended guidelines into the defendant's calculations would yield a sentence of 70 months instead of 130. The court found that applying the new minimums "is the only way to give effect to Congress's intent to achieve consistency with other Guidelines provisions, especially with regard to which kinds of defendants---cooperative and uncooperative---are eligible for sentence reductions."
The COA distinguishes Carradine and Dorsey. These two cases "stand for the proposition that defendants who were sentenced after August 3, 2010, [the FSA's effective date] were entitled to be sentenced under the new FSA minimums at their original sentencing hearings." The COA here admonishes that 3582(c)(2) hearings are not plenary proceedings like the latter original sentencing hearings. Carradine and Dorsey did not address the application of mandatory minimums in the 3582(c)(2) context.
A reduction here would be consistent with Guidelines policy statements. The applicable guideline range here "automatically incorporates the statutory minimums in the cocaine base sentencing statutes . . . via 1B1.1(a)(8), which interlocks with 5G1.1---the section of the Guidelines that incorporates the statutory minimums." As the new minimums are the applicable minimums in the 1B1.10(b)(1) calculation, Amendment 750 lowers the applicable guideline range. So a sentence reduction is consistent with the Sentencing Commission's policy statement in 1B1.10(a)(2)(B). The statements in application note 1(a)(A) to 1B1.10 do not change this reasoning.
The COA notes that "[e]ach time the Supreme Court has heard cases involving the FSA, it has expanded the class of defendants who are entitled to or eligible for the benefits of lowered penalties under the FSA."
Judge Cole concurred:
He would resolve the case on narrower grounds. The sentence here was based on a subsequently lowered guideline range, rather than a mandatory minimum. But Judge Cole would hang his hat on the substantial assistance. The 5K "effectively 'waived' the mandatory minimum and permitted the district court to impose a sentence based on [the] otherwise-applicable guideline range." This approach "obviates the need to delve any further into the controversy surrounding the retroactive application of the Fair Sentencing Act." Judge Cole would wait for the en banc Blewett proceedings before saying more. . . .
Judge Rodgers dissented:
Notes that Blewett could be resolved with this opinion if the en banc court were to accept it. Believes that at this time the panel is bound by Hammond. Does not see substantial assistance as getting around this block.
The COA distinguishes Carradine and Dorsey. These two cases "stand for the proposition that defendants who were sentenced after August 3, 2010, [the FSA's effective date] were entitled to be sentenced under the new FSA minimums at their original sentencing hearings." The COA here admonishes that 3582(c)(2) hearings are not plenary proceedings like the latter original sentencing hearings. Carradine and Dorsey did not address the application of mandatory minimums in the 3582(c)(2) context.
A reduction here would be consistent with Guidelines policy statements. The applicable guideline range here "automatically incorporates the statutory minimums in the cocaine base sentencing statutes . . . via 1B1.1(a)(8), which interlocks with 5G1.1---the section of the Guidelines that incorporates the statutory minimums." As the new minimums are the applicable minimums in the 1B1.10(b)(1) calculation, Amendment 750 lowers the applicable guideline range. So a sentence reduction is consistent with the Sentencing Commission's policy statement in 1B1.10(a)(2)(B). The statements in application note 1(a)(A) to 1B1.10 do not change this reasoning.
The COA notes that "[e]ach time the Supreme Court has heard cases involving the FSA, it has expanded the class of defendants who are entitled to or eligible for the benefits of lowered penalties under the FSA."
Judge Cole concurred:
He would resolve the case on narrower grounds. The sentence here was based on a subsequently lowered guideline range, rather than a mandatory minimum. But Judge Cole would hang his hat on the substantial assistance. The 5K "effectively 'waived' the mandatory minimum and permitted the district court to impose a sentence based on [the] otherwise-applicable guideline range." This approach "obviates the need to delve any further into the controversy surrounding the retroactive application of the Fair Sentencing Act." Judge Cole would wait for the en banc Blewett proceedings before saying more. . . .
Judge Rodgers dissented:
Notes that Blewett could be resolved with this opinion if the en banc court were to accept it. Believes that at this time the panel is bound by Hammond. Does not see substantial assistance as getting around this block.
