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United States v. Barabas

United States District Court, E.D. Tennessee, Knoxville

April 21, 2015

UNITED STATES OF AMERICA
v.
LARRY GENE BARABAS, JR

MEMORANDUM AND ORDER

LEON JORDAN, District Judge.

This criminal case is before the court on the defendant's motion for sentence reduction. [Doc. 453]. Through counsel, the defendant asks the court to resentence him pursuant to 18 U.S.C. § 3582(c)(2) and in accordance with Amendments 782 and 788 to the United States Sentencing Guidelines Manual ("U.S.S.G."). The government has responded [doc. 461], deferring to the court's discretion whether and to what extent to grant any such reduction, subject to the limitations of 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.

I. Authority

"Federal courts are forbidden, as a general matter, to modify a term of imprisonment once it has been imposed, but the rule of finality is subject to a few narrow exceptions." Freeman v. United States , 131 S.Ct. 2685, 2690 (2011) (internal citation and quotation marks omitted). One such exception is identified in 18 U.S.C. § 3582(c)(2):

[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 [18 U.S.C.] 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.

In determining whether a defendant has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission, the court must first identify "the amended guideline range that would have been applicable to the defendant had the relevant amendment been in effect at the time of the initial sentencing." Dillon , 560 U.S. at 827 (internal quotation marks and citation omitted); see also U.S. Sentencing Guidelines Manual § 1B1.10(b)(1) (2014). Amendment 782, which became effective on November 1, 2014, revised the guidelines applicable to drug-trafficking offenses by reducing the offense levels assigned to the drug and chemical quantities described in guidelines 2D1.1 and 2D1.11. See U.S. Sentencing Guidelines Manual app. C, amend. 782 (2014). Amendment 788, which also became effective on November 1, 2014, identified Amendment 782 as retroactive. See id. , amend. 788.

Other than substituting Amendment 782 for the corresponding provision applicable when the defendant was originally sentenced, the court "shall leave all other guideline application decisions unaffected." See U.S. Sentencing Guidelines Manual § 1B1.10(b)(1) (2014). The court "shall not" reduce a defendant's term of imprisonment to a term "less than the minimum of the amended guideline range, " nor to a term "less than the term of imprisonment the defendant has already served." Id. § 1B1.10(b)(2)(A), (C).[1] In addition, the commentary to guideline 1B1.10 provides that a court must also consider the § 3553(a) sentencing factors and the danger to the public created by any reduction in a defendant's sentence. See id. cmt. n.1(B). A court may further consider a defendant's post-sentencing conduct. See id.

II. Factual Background

By judgment dated September 8, 2010, this court sentenced the defendant to a term of imprisonment of 84 months as to Counts One (conspiracy to distribute and possess with the intent to distribute oxycodone) and Five (money laundering conspiracy), to be served concurrently for a net sentence of 84 months. The defendant's guideline range was 135 to 168 months (total offense level 33, criminal history category I) and was based on the drug quantity table found at U.S.S.G. § 2D1.1(c).

Prior to sentencing, the United States filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1. The court granted that motion and departed downward to 102 months, a substantial-assistance reduction of approximately 25 percent from the bottom of the guideline range. [Docs. 341, 288]. The court also varied downward an additional 18 months for reasons unrelated to substantial assistance. [Docs. 341, 331]. According to the Bureau of Prisons, the defendant is presently scheduled for release on March 23, 2016.

III. Analysis

Applying Amendment 782, the defendant's new guideline range is 108 to 135 months, based on a total offense level of 31 and a criminal history category of I. Thus, the defendant was originally sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.

The court has considered the filings in this case, along with the relevant 3553(a) factors. Additionally, the court has considered the danger to the public as the result of any reduction in the defendant's sentence, the seriousness of the defendant's offense, the defendant's post-sentencing conduct, and the need to protect the public. See id. § 1B1.10 cmt. n.1(B)(ii). Having done so, the court finds that the defendant should be granted a sentence reduction.

IV. Conclusion

For the reasons stated herein, the defendant's motion for sentence reduction [doc. 453] is GRANTED. The defendant's term of imprisonment is reduced to 81 months, which is a corresponding 25 percent substantial assistance reduction from the bottom of the new guideline range. See id. § 1B1.10(b)(2)(B). If this sentence is less than the amount of time the defendant has already served, the sentence shall instead be reduced to "time served." See id. § 1B1.10(b)(2)(C). Except as provided above, all provisions of the judgment dated September 8, 2010, shall remain in effect. The effective date of this order is November 2, 2015. See id. § 1B1.10(e)(1).

IT IS SO ORDERED.


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