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U.S. v. CROSBY

April 19, 1991

UNITED STATES, PLAINTIFF,
v.
JEFFREY R. CROSBY, DEFENDANT.



The opinion of the court was delivered by: Cohill, Chief Judge.

MEMORANDUM ORDER

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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