Following Up on Yesterday: Holder Memo on Appeal

I just posted this note to the 6th Cir. blog.  It dovetails nicely with our panel training yesterday.

United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).

But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence.  The COA rejected the argument.

Crack case.  Defendant was a career offender.  GLs 151 to 188.  D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer).  Dist ct granted downward variance and sentenced D to 130 months of imprisonment. 

COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"   

COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement.  Confers no rights.  Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender).  Also said that he was not a candidate for the policy b/c of his lengthy criminal history.    

Sentence affirmed. 

Crack Retro and Career Offenders

Check out United States v. Jackson, No. 10-3923 (6th Cir. May 8, 2012) (for publication), for news on career offenders and the retroactive crack amendments.

It's discussed on the Sixth Cir. blog at www.circuit6.blogspot.com.

Crack Reductions: Darn It!

(This picture is just so random!)
United States v. McKinney, No. 11-1439 (6th Cir. Feb. 23, 2012) (unpublished). 

Chief Judge Batchelder, and Judges Norris and Stranch. 

District court denied a crack reduction under 18 U.S.C. 3582(c)(2).  Court of appeals affirmed this denial.

2004 conviction for guns and drugs.  As part of the plea deal, the government agreed to dismiss a count that would have carried a consecutive thirty-year mandatory sentence (for having a destructive device).  In '04, highest base offense level was 38 (more than 1.5 kilos of crack).  That's what this defendant got.  Ended up with a total offense level of 37, criminal history category IV, and range of 292 to 365 months. 

Defendant did not object to the original PSR.  District court sentenced defendant to 292 months + 120 months (concurrent) on gun count.  Sentence fell to 235 months after a Rule 35. 

After the first round of crack amendments, the defendant sought a reduction in sentence.  Probation did not recommend a reduction, finding that the PSR established the defendant was responsible for more than 4.5 kilos of crack, the new threshold for level 38.  The district court (who was not the original sentencing judge) found that the only original determination was that the defendant was responsible for at least 1.5 kilos.  That quantity would put the defendant at base offense level 36 under the first set of amendments. 

The district court requested supplemental briefing regarding how the court should exercise its discretion.  The government moved for a second Rule 35 reduction.  The case was reassigned and returned to the original sentencing judge. 

The original sentencing judge ruled against a reduction under 3582(c)(2).  Looked to the original sentencing record and the PSR, to which the defendant had not objected.  Court found that the defendant was responsible for more than 4.5 kilos.  Court found that this conclusion was not inconsistent with the original findings b/c 4.5 kilos is in excess of 1.5 kilos, the only original determination.  The court did grant the Rule 35 and reduced the sentence to 214 months. 

The court of appeals concluded that:
* The defendant had accepted all of the facts in the PSR b/c he did not object to them. 
* The PSR confirmed that the defendant was responsible for at least 6 kilos of crack. 
* United States v. Moore, 582 F.3d 641 (6th Cir. 2009), said that a new factual finding of a higher quantity is not inconsistent with an original finding of "at least" 1.5 kilos.