The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant seeks a reduction in his sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 706 to the sentencing guidelines. That amendment revised U.S.S.G. § 2D1.1(c), the Drug Quantity Table, by generally reducing the base offense level for crack cocaine offenses by two levels. Defendant filed two pro se motions for a reduction, and the Federal Public Defender has filed a counseled one on his behalf, and a supplemental one as well.
The government opposes a reduction on the ground that Defendant's offense of conviction and his institutional history indicate he would be a risk to public safety. Defendant's institutional history does give us pause, but we will grant the reduction nonetheless.
In December 1998, a jury found Defendant guilty of the following offenses: (1) Count I--forcibly assaulting and interfering on June 1, 1998, with federal marshals in the performance of their official duties, in violation of 18 U.S.C. § 111; (2) Count II--distributing in excess of five grams of crack cocaine from May 31, 1998, to June 5, 1998, in violation of 21 U.S.C. § 841; (3) Count III--using and carrying a firearm on June 1, 1998, in relation to a drug-trafficking crime and to a crime of violence, assault on a federal officer, in violation of 18 U.S.C. § 924(c)(1); and (4) Count IV--knowingly making a false statement on June 5, 1998, to federal marshals that he had never had a gun, in violation of 18 U.S.C. § 1001.
Part of Defendant's offense conduct was firing ten rounds from a handgun at seven federal agents. The agents were driving in two cars on a street in Harrisburg in the early morning hours, looking for fugitives. Defendant was apparently upset that their presence had interrupted one of his drug deals. See PSR ¶ 20 (opining that Defendant's "acts were 'spur-of-the-moment' that occurred in an angry response to an interrupted drug sale"). Defendant did not hit any of the officers or either of their cars. One bullet hit a parked car, and another hit a tree.
In calculating Defendant's guideline range, the presentence report (PSR) divided the counts into four groups. Defendant's offense level on group 2 (representing count II) was 32, based on a crack-cocaine quantity of 87.48 grams. This became his total offense level for calculating his guideline range. With an offense level of 32 and a criminal history category of III, Defendant had a guideline range of 151 to 188 months.
However, the probation officer believed that, even with the mandatory, consecutive sixty-month sentence for the section 924(c)(1) offense in count III, this range did not capture the seriousness of Defendant's conduct in shooting at seven federal law-enforcement personnel. Based on U.S.S.G. § 5K2.6, he therefore recommended an upward departure from the guideline range.
At sentencing, the court accepted the recommendation and increased the offense level on group 2 to 34, giving Defendant a range of 188 months to 235 months. On March 30, 1999, Defendant was sentenced to 120 months on count I, 212 months on count II,*fn1 and sixty months on count IV, to run concurrently. Defendant was also sentenced to sixty months on count III, to run consecutively to the term on count II, as required by statute. Defendant's total sentence was 272 months.
The United States Sentencing Commission has authority to amend the guidelines, 28 U.S.C. § 994(o), and to provide that any amendment has retroactive effect. Id., § 994(u). Under 18 U.S.C. § 3582(c)(2), a defendant can seek the benefit of an amendment by a motion to modify his sentence. Any sentence reduction must take into account "the factors set forth in 18 U.S.C. § 3553(a) to the extent that they are applicable" and "must be consistent with applicable policy statements issued by the Sentencing Commission." Id.
U.S.S.G. § 1B1.10 (Policy Statement)(effective March 3, 2008) is the applicable policy statement. In pertinent part, it provides that under section 3582(c)(2) a court "may reduce the defendant's term of imprisonment" "when 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." Id., § 1B1.10(a)(1). Amendment 706 is listed in subsection (c). In deciding whether to reduce the sentence, or the extent of any reduction, the court must consider public safety. As application note 1(B)(ii) provides: "The Court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment . . . ." The court may also consider "post-sentencing conduct." Application note 1(B)(iii).
The court need not grant a section 3582(c)(2) motion, but rather has the discretion to do so. See United States v. Hanlin, 48 F.3d 121, 124 n.2 (3d Cir. 1995); see also Background Commentary to section 1B1.10 ("The listing of an amendment in subsection (c) reflects policy determinations by the Commission . . . that, in the sound discretion of the court, a reduction in the term of imprisonment may be appropriate . . . The authorization of such a ...