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U.S. v. CROSBY

United States District Court, Western District of Pennsylvania


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 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
    defendant;

(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
    conduct;

      (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
    conduct; and

    (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 modification.

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 greater than 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 this case.

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 the same.

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.

19910419

© 1992-2003 VersusLaw Inc.



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