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United States v. Black

July 21, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FREDERICK O. BLACK, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM AND ORDER

This criminal case is before the Court on the defendant's pro se Motion for Early Termination of Supervised Release Pursuant to 18 U.S.C. § 3582(c)(2) and 18 U.S.C. § 3553(a) [Doc. 93], in which the defendant requests that the Court terminate his supervised release term early, pursuant to 18 U.S.C. § 3582(c)(2) and 18 U.S.C. § 3553(a). The Government has responded in opposition to the defendant's request for a reduction of sentence [Doc. 94], and defendant has filed a reply. [Doc. 96.] Defendant has also filed a pro se Motion for Appointment of Counsel. [Doc. 95.] Defendant's motions are now ripe for determination.

I. Legal Background

A district court may modify a defendant's sentence after judgment has been entered only if modification is permitted by statute. United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001). Modification is permitted by 18 U.S.C. § 3582(c)(2) when the sentencing range for the offense for which the defendant was sentenced has been lowered:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Through Amendment 706 to the Sentencing Guidelines, effective November 1, 2007, the Sentencing Commission lowered the sentencing ranges for most cocaine base offenses by two offense levels in an effort to correct the disparity in sentences between defendants punished for cocaine base offenses and defendants punished for other drug offenses. See U.S.S.G. § 2D1.1. On December 11, 2007, the Commission made the amended guideline range retroactive, effective March 3, 2008. See U.S.S.G. § 1B1.10. Accordingly, the Court has discretion under 18 U.S.C. § 3582(c)(2) to reduce a defendant's sentence for a cocaine base offense, after considering the § 3553 factors, if the reduction is consistent with applicable policy statements issued by the Sentencing Commission.

The Sentencing Commission has issued a general policy statement regarding reduction of sentences as a result of the amendments to certain guideline ranges, including the ranges for most cocaine base offenses. U.S.S.G. § 1B1.10. The policy statement partially limits the Court's discretion in reducing a defendant's sentence:

(A) In General.--Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.

(B) 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 guideline 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.

(C) Prohibition.--In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.

U.S.S.G. § 1B1.10 (b)(2). In addition to these limits, the Sentencing Commission states that a court must consider the § 3553 factors and the danger to the public created by any reduction in defendant's sentence, and a court may consider defendant's post-sentencing conduct. Id. at cmt. n.1(B).

II. Analysis

In the present case, the defendant requests that the remaining year of his three-year supervised release term be terminated in Case Number: 3:94-cr-117. In his motion for early termination of supervised release, the defendant states that he served "over twelve years in prison" for the 1994 offense and was released in 2005. [Doc. 93 at 1.] The Court notes that defendant is currently charged with offenses in connection with Case Number 3:07-cr-61, and a revocation of supervised release petition is pending in Case Number 3:94-cr-117. Nevertheless, the defendant is not currently serving the ...


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