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United States v. Shows

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

May 14, 2015

UNITED STATES OF AMERICA,
v.
PHILLIP J. SHOWS

MEMORANDUM AND ORDER

LEON JORDAN, District Judge.

This criminal case is before the court on the defendant's motion for sentence reduction [doc. 698]. 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 prosecution has responded [doc. 707], 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.

Specifically, the defendant asks for a reduced sentence of 90 months which includes reapplication of an 11-month reduction "for prior jail credit time" [doc. 698, p. 2], and the United States does not oppose that request [doc. 707, p. 3]. The court cannot agree, however, that it has the authority to impose a 90-month sentence. The defendant's term of imprisonment will instead be reduced to 100 months, which should still render him eligible for release on November 2, 2015.

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:

[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.

18 U.S.C. § 3582(c)(2) (emphasis added). If the court finds a defendant eligible for sentence reduction, "[t]he court may then consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).'" United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013) (quoting Dillon v. United States, 560 U.S. 817, 826 (2010)).

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) (emphases added).[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 October 25, 2010, this court sentenced the defendant to 111 months' imprisonment as to Count One (conspiracy to distribute and possess with the intent to distribute oxycodone) and Count Three (money laundering conspiracy), to be served concurrently for a net term of 111 months. The defendant's guideline range was 121 to 151 months, based on a total offense level of 29 and a criminal history category of IV.

In calculating the defendant's sentence, the court began at a within-guideline term of 122 months and then applied an 11-month reduction to account for time already served on a related and already discharged sentence from the 19th Circuit Court, Indian River County, Florida. The 11-month reduction was a downward departure pursuant to Application Note 4 of U.S.S.G. § 5G1.3 (now Application Note 5), resulting in the below-guideline sentence of 111 months. According to the Bureau of Prisons, the defendant is presently scheduled for release on May 7, 2016.

III. Analysis

Applying Amendment 782, the defendant's new guideline range is 100 to 125 months, based on a total offense level of 27 and a criminal history category of IV. Thus, the defendant was originally sentenced to a term of imprisonment based on a sentencing ...


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