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United States v. Trice

June 5, 2009


The opinion of the court was delivered by: Yohn, J.


Defendant Wayne Trice has filed a motion for modification of an imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2).*fn1 Trice seeks reduction of his sentence following Amendment 706 to the Sentencing Guidelines, which reduced the offense levels of crack-based offenses and was made retroactively applicable by Amendment 713, effective March 3, 2008. U.S.S.G. Supp. to App'x C, Amend. 706, 711, 713. The government concedes that Trice is eligible for a sentencing reduction, but urges the court to deny Trice's motion on discretionary grounds. For the reasons discussed below, the court will grant the motion.

I. Factual Background

On July 17, 1996, a jury found Trice guilty of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846, and possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Due to the amount of cocaine base (crack) involved, defendant's base offense level under the then-applicable Sentencing Guidelines was 38. U.S.S.G. § 2D1.1(c)(1) (2005). After a 2-point increase for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1), defendant's total offense level was 40. Defendant had a criminal history category of II due to a first degree murder conviction in Pennsylvania court. This 40-II combination yielded a sentencing range of 324-405 months' imprisonment. The court imposed a sentence at the top of this range: 405 months. The court also sentenced Trice to five years' supervised release, a $2,000 fine, and a $100 special assessment. United States v. Trice, No. 95-124-08, (E.D. Pa. Oct. 23, 1996) (Judgment in a Criminal Case) (Doc. No. 280).

On November 1, 2007, the United States Sentencing Commission adopted Amendment 706 to the Sentencing Guidelines, which, as further amended by Amendment 711, decreased by two levels the base offense level for defendants being sentenced for crack offenses. See United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008) (citing U.S.S.G. § 2D1.1; U.S.S.G. Supp. to App'x C, Amend. 706). Amendment 706 was made retroactive pursuant to Amendment 713, which became effective on March 3, 2008. U.S.S.G. Supp. to App'x C, Amend. 713. If Amendment 706 had been in place at Trice's original sentencing, his base offense level would have been 36, and his total offense level would have been 38. With a 38-II combination, the applicable sentencing range would have been 262-327 months.

Trice is in the custody of the Pennsylvania Department of Corrections. In addition to his federal sentence, he is serving a state sentence of life imprisonment for first degree murder, as well as additional state sentences that are consecutive to the life sentence.*fn2 Evidently, Trice has adapted well to incarceration. His "Correctional Plan" prepared in April 2008 reports "no misconducts." (Def.'s Supplemental Mem. Law Supp. Mot Reduction Sentence (Doc. No. 457) ("Def.'s Supplemental Mem.") Ex. A.) Moreover, Trice successfully completed numerous prison programs and educational courses. (Id. Ex. A-C.) As defense counsel expressed at oral argument and in writing, Trice has twice received "promotional transfers... resulting in his being designated to facilities closer to home and family." (Def.'s Supplemental Mem. 4.)

II. Discussion

A. Statutory Basis for Sentence Modification

In general, a court "may not modify a term of imprisonment once it has been imposed."

18 U.S.C. § 3582(c) (2006).However, Congress has empowered the courts to modify already-imposed sentences in limited circumstances, including: 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.

Id. § 3582(c)(2) (emphasis added). As expressed by the permissive "may," court's have discretion as to whether to grant § 3582(c)(2) reductions. Cf. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009) ("We review a [district] court's ultimate decision whether to grant or deny a defendant's motion to reduce sentence under § 3582(c)(2) for abuse of discretion."). The Sentencing Commission has expressed its policy statement regarding sentence reduction pursuant to § 3582(c)(2) in U.S.S.G. § 1B1.10. Subsection (c) of § 1B1.10 sets out the "covered amendments" to the Guidelines that, pursuant to § 3582(c)(2), may be retroactively applied to reduce already-imposed sentences. Thus, an amendment must be listed in § 1B1.10(c) for the retroactive application of that amendment to be consistent with the Sentencing Commission's policy statement. Amendment 706 is listed in § 1B1.10(c) and, thus, may be applied retroactively.

Trice argues that, under United States v. Booker, 543 U.S. 220 (2005), which rendered the sentencing guidelines advisory, the court may grant a reduction greater than that authorized by the amended guidelines. The Third Circuit has rejected this argument. United States v. Doe, 564 F.3d 305, 312-14 (3d Cir. 2009). In Doe, the Third Circuit explained that "Booker 'applies to full sentencing hearings-whether in an initial sentencing or in a resentencing where the original sentence is vacated for error,' but not to sentence modification proceedings under § 3582(c)(2)." Doe, 564 F.3d at 313 (quoting United States v. Dunphy, 551 F.3d 247, 253 (4th Cir. 2009)). The Third Circuit went on to explain that "[n]othing in Booker purported to obviate the congressional directive in § 3582(c)(2) that a sentence reduction pursuant to that section be consistent with Sentencing Commission policy statements." Id. at 314. The Sentencing Commission's policy statement states, in relevant part, that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range." § 1B1.10(b)(2)(A).*fn3 Thus, the amended guidelines limit the amount by which a court may modify a sentence in § 3582(c)(2) proceedings, Booker notwithstanding.

B. Application of § 3582(c)(2) to Trice's Case

The official commentary to § 1B1.10 provides guidance as to how courts are to exercise their discretion when considering § ...

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