Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mitchell

May 11, 2009

UNITED STATES OF AMERICA
v.
KOREY MITCHELL, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

MEMORANDUM OPINION

This matter is before the Court on Defendant Korey Mitchell's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 53) filed in the above captioned matter on March 17, 2009. The Government filed a response to said Motion on April 6, 2009. (Docket No. 55). On April 28, 2009, Defendant filed a Supplement to his Motion. (Docket No. 58). Based on the following, Defendant's Motion [53] is GRANTED.

On October 10, 2006, Defendant was charged by indictment at Criminal Number 06-0358 with possession with intent to distribute and distribution of fifty (50) grams or more of a mixture and substance containing cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) at Count I; possession with intent to distribute less than five hundred (500) grams of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) at Count II; and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), at Count III. (See Docket Nos. 4 and 5).

On June 25, 2007, Defendant pleaded guilty to Counts I and III.*fn1 (See Docket No. 33). Thereafter, on November 29, 2007, Defendant was sentenced by the undersigned Judge to sixty (60) months imprisonment at Count I and thirty-three (33) months at Count III, said terms to be served concurrently, followed by five years of supervised release. (Docket No. 44). Upon motion by the Government, Count II was dismissed. (Id.).

Defendant moves to reduce his sentence under 18 U.S.C. § 3582(c)(2) due to Amendment 706 to Section 2D1.1 of the Sentencing Guidelines, which generally reduces the base offense levels for crack cocaine offenses. See United States v. Moses, Crim. No. 05-109, 2008 WL 655993, at *1 (W.D. Pa. Mar. 5, 2008)(generally discussing "that in the 2007 amendments to the United States Sentencing Guidelines, the base offense levels involving crack cocaine offenses have been lowered, and that the reduction applies retroactively").

In considering a section 3582(c)(2) motion, it is within a court's discretion to determine whether an evidentiary hearing is necessary because proceedings under section 3282(c)(2) and the policy statement of Guideline 1B1.10(a)(3) "do not constitute a full resentencing of the defendant." U.S.S.G. § 1B1.10(a)(3); United States v. Styer, Civ. A. No. 08-2951, 2009 U.S. App. LEXIS 6240, at *5 (3d Cir. Mar. 25, 2009)(citing United States v. Faulks, 201 F.3d 208, 210 (3d Cir. 2000)). Instead, "courts are constrained to consider only the retroactive amendment at issue and are instructed to 'leave all other guideline application decisions unaffected.'" Styer, 2009 U.S. App. LEXIS, at *5 (quoting U.S.S.G. § 1B1.10(b)(1); and citing United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002)). To that end, a court's proceeding under section 3582(c) is "not a do-over of an original sentencing where a defendant is cloaked" with rights mandated by the Constitution and statutory law. Id. (citing United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999)); see also FED. R. CRIM. P. 43(b)(4)(stating that a defendant "need not be present" for a section 3582(c)(2) proceeding).

Here, the Court, which sentenced Defendant in the first instance, is well familiar with the facts of the case. Therefore, upon consideration of same and Defendant's and the Government's factual arguments concerning the instant motion, the Court does not find that an evidentiary hearing is warranted. Styer, 2009 U.S. App. LEXIS 6240, at *7. Furthermore, the Court notes that Defendant has not requested an evidentiary hearing. The Court now turns to the whether Defendant is entitled to a reduction in his sentence.

Guideline § 1B1.10(a)(1), titled "Reduction in Term of Imprisonment as a Result of Amended Guideline Range," provides that:

In a case in which 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 Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. 3582(c)(2).

U.S.S.G. § 1B1.10(a)(1). The statutory section referenced therein, 18 U.S.C. § 3582(c)(2) provides 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.

18 U.S.C. 3582(c)(2). Section 3582(c)(2) permits a district court to retroactively reduce the term of imprisonment of a defendant "based on a sentencing range that has subsequently been lowered by the Sentencing Commission," and Amendment 706 qualifies as such a reduction. U.S.S.G. § 1B1.10(c).

Guideline § 1B1.10 sets forth the policy statement applicable to 18 U.S.C. § 3582(c)92). See U.S.S.G. § 1B1.10 cmt. background. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.