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U.S. v. CROSBY
April 19, 1991
UNITED STATES, PLAINTIFF,
JEFFREY R. CROSBY, DEFENDANT.
The opinion of the court was delivered by: Cohill, Chief Judge.
Presently before the Court is defendant Jeffrey R. Crosby's
Motion to Modify Sentence Pursuant to Title 18, U.S.C. §
3582(c)(2). A jury convicted Mr. Crosby of escape from a work
camp outside the fence, but part of, the Federal Correctional
Institution at McKean, Pennsylvania. On August 2, 1990, this
Court sentenced him to a term of 37 months imprisonment. For
the following reasons, we will grant defendant's request for a
modification of sentence.
At the time of sentence, § 2P1.1(a)(1) of the United States
Sentencing Guidelines ("Guidelines") called for a base offense
level of 13 for the offense of escape from a federal penal
institution. We granted the defendant a 2-point reduction in
offense level for acceptance of responsibility, yielding a
total offense level of 11, which combined with a criminal
history category of VI, called for a sentence of 27-33 months.
For reasons stated on the record at the time of sentencing,
this Court departed upward to the next highest category, 30-37
months, and imposed a sentence of 37 months.
Several months after imposition of the sentence, § 2P1.1 of
the Guidelines was amended. The following new language is
relevant to this case:
If the defendant escaped from the non-secure
custody of a community corrections center,
community treatment center, "halfway house," or
similar facility, . . . decrease the offense level
under subsection (a)(1) by 4 levels. . . .
Guidelines § 2P1.1(b)(3).
It is undisputed that the part of the McKean facility from
which the defendant escaped is non-secure.
The portion of the Guidelines dealing with retroactivity
states in pertinent part:
Retroactivity of Guideline Range (Policy Statement)
(a) Where a defendant is serving a term of
imprisonment, and the guideline range applicable
to that defendant has subsequently been lowered as
a result of an amendment to the guidelines listed
in subsection (d) below, a reduction in the
defendant's term of imprisonment may be considered
under 18 U.S.C. § 3582(c)(2). . . .
(b) In determining whether a reduction in sentence
is warranted for a defendant eligible for
consideration under 18 U.S.C. § 3582(c)(2), the
court should consider the sentence that it would
have originally imposed had the guidelines, as
amended, been in effect at that time. . . .
Guidelines § 1B1.10 (emphasis in original).
The amendment at issue here was one of the ones listed in
subsection (d). Defendant asks that we impose a lower sentence
pursuant to 18 U.S.C. § 3582(c)(2), which states:
(c) Modification of an imposed term of
imprisonment. — The court may not modify a term of
imprisonment once it has ...
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