United States District Court, Western District of Pennsylvania
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 been imposed except that
(2) in 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 pursuant to 28 U.S.C. § 994(o),
upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own
motion, 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.
It is clear from the above recitation of authorities that
this Court may modify Mr. Crosby's sentence in this case "after
considering the factors set forth in section 3553(a)."
18 U.S.C. § 3582(c)(2). That section states:
(a) Factors to be considered in imposing a
sentence. — The Court shall impose a sentence
sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2)
of this subsection. The court, in determining the
particular sentence to be imposed, shall consider
(1) the nature and circumstances of the offense
and the history and characteristics of the
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for the applicable category of
offense committed by the applicable category of
defendant as set forth in the guidelines that
are issued by the Sentencing Commission pursuant
to 28 U.S.C. § 994(a)(1) and that are in effect on
the date the defendant is sentenced;
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to
28 U.S.C. § 994(a)(2) that is in effect on the date the
defendant is sentenced;
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
(7) the need to provide restitution to any
victims of the offense.
18 U.S.C. § 3553(a).
The government opposes a reduction in sentence for two
reasons. The first is that "Section 3553(a)(4) . . . states in
relevant part that the kind of sentence to be imposed and the
sentencing range to be applied are those `. . . in effect on
the date the defendant is sentenced.'" Government Response at
2. We disagree with the government's characterization of §
3553(a)(4). As cited above, § 3582(c)(2) authorizes a
modification of sentence when the applicable Guidelines range
has been lowered subsequent to sentencing. The Court may so
modify a sentence "after considering the factors set forth in
section 3553(a). . . ." Thus, it is clear that the language
cited by the government is not a flat ban on retroactive
application of a Guidelines modification, but is merely one
factor to be considered in deciding whether to make a
The government's second reason for opposing a reduction is
stated as follows: "Reading Section 2P1.1(b)(3) it is clear
that there is no section warranting retroactive applicability
to the defendant's current sentence." Government Response at 2.
While it is true that no language in § 2P1.1(b)(3) itself
speaks to retroactive application, § 1B1.10 does specifically
authorize retroactive application of this amendment.
Upon consideration of the factors listed in § 3553(a), we
find that a modification of sentence is warranted in this
instance. Particularly relevant is the statute's directive that
"[t]he court shall impose a sentence sufficient, but not
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection." 18 U.S.C. § 3553(a). One purpose
listed in paragraph (2) is "the need for the sentence imposed
to reflect the seriousness of the offense. . . ." The
Sentencing Commission has determined that escape from a
non-secure facility warrants a lesser sentence than escape from
a secure facility, and the Commission has specifically
authorized retroactive application of this amendment. We agree
with the Commission's determination and will abide by it in
The Court finds that the base offense level is 13 according
to Guidelines § 2P1.1(a). Pursuant to § 2P1.1(b)(3), this
figure is reduced 4 levels to a base offense level of 9. As we
did at sentencing, we will apply a 2-level reduction for
acceptance of responsibility for a total offense level of 7.
The range for a criminal history category of VI and a total
offense level of 7 is 15-21 months. However, we will retain the
upward departure from the applicable Guidelines range for the
reasons given at sentencing. We therefore refer to the next
highest Guidelines range, which is 18-24 months. As we did at
sentencing, we will choose the top of that range and impose a
sentence of 24 months. Except for this reduction in the term of
imprisonment, the sentence imposed August 2, 1990 shall remain
AND NOW, to-wit, this 19th day of April, 1990, for the
foregoing reasons, it is ORDERED, ADJUDGED, and DECREED that
defendant Jeffrey R. Crosby's sentence in this action,
originally imposed August 2, 1990, be and hereby is MODIFIED
only as to the term of imprisonment as follows:
Pursuant to the Sentencing Reform Act of 1984,
it is the judgment of the Court that the
defendant, Jeffrey R. Crosby, is hereby committed
to the custody of the Bureau of Prisons to be
imprisoned for a term of 24 months.
The term of imprisonment imposed by this
judgment shall run consecutively to the term of
imprisonment imposed by the United States District
Court for the Southern District of Mississippi at
Docket Number J87-00112(L).
IT IS FURTHER ORDERED that, except as modified herein, the
judgment of August 2, 1990, and all findings made pursuant
thereto shall remain in full force and effect.
© 1992-2003 VersusLaw Inc.