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Howell v. United States

June 22, 2009

CORDELL HOWELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM ORDER

Pending before the court is a motion for sentencing level reconsideration pursuant to 18 U.S.C. § 3582(c)(2) (Docket No. 61) filed by defendant Cordell Howell ("Howell" or "defendant"). Upon reviewing defendant's motion, the government's response in opposition to defendant's motion for reduction of sentence (Docket No. 63), and defendant's supplemental response to the government's response (Docket No. 73), the court will DENY petitioner's motion for the reasons set forth herein.

Background

On January 8, 2003, a federal grand jury returned a two-count indictment against defendant. He was charged in count one with possession with intent to distribute and distribution of less than 5 grams of crack cocaine on April 4, 2002, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C), and charged in count two with possession with intent to distribute and distribution of 5 grams or more of crack cocaine on April 10, 2002, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)( iii). (Docket No. 1.)

On May 30, 2003, defendant changed his previously entered plea from not guilty to guilty as to count two of the indictment, pursuant to a plea agreement. (Docket Nos. 14-15.) The government agreed to dismiss count one as part of the agreement, but defendant accepted responsibility with respect to the conduct charged in count one and stipulated that the conduct charged in count one may be considered by the court at sentencing. Defendant further stipulated that the total amount of crack cocaine attributable to his conduct was 13.3 grams.

The court scheduled sentencing for August 22, 2003. (Docket No. 13.) Defendant failed to appear on that date, and a warrant for his arrest was issued by the court. Defendant was apprehended, and sentencing was rescheduled for March 2, 2004. (Docket No. 23.) On March 2, defendant was sentenced to a term of imprisonment of 235 months, five years supervised release, and no fine. (Docket No. 24.)

On March 3, 2004, defendant appealed. (Docket No. 25.) Before the appeal was decided, the government and defendant agreed to have defendant resentenced. On November 15, 2005, the court sentenced defendant to the same sentence he originally received. (Docket No. 45.) On November 18, 2005, defendant appealed the second sentence. (Docket No. 46.) On February 29, 2008, the Court of Appeals for the Third Circuit affirmed the sentence imposed by this court. (Docket No. 60.)

Standard of Review

Generally, a district court may not alter a criminal sentence of punishment once it has been imposed. United States v. Wise, 515 F.3d 207, 220 (3d Cir. 2008). If the defendant's sentence, however, was based upon a sentencing range under the United States Sentencing Guidelines (the "Sentencing Guidelines" or "guidelines") that has been subsequently lowered, then the court may reduce the defendant's term of imprisonment, provided the reduction is consistent with the applicable policy statement issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable policy statement is found at section 1B1.10 of the Sentencing Guidelines. It states that a reduction is warranted where the applicable guideline range has subsequently been lowered as the result of one of the guideline amendments listed in section 1B1.10(c). U.S. SENTENCING GUIDELINES MANUAL § 1B1.10 (2007). If the sentencing range is not reduced by a listed amendment, then, under § 3582, the defendant is not eligible for a reduction in sentence. Even if eligible for a reduction, § 3582(c)(2) does not provide for a "full de novo resentencing." United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997). The amended sentencing guideline provision is substituted for the corresponding provision, and all other guideline application decisions are not altered. Id.

Discussion

Defendant contends that, based upon amendment 706 to the Sentencing Guidelines, he qualifies for a two-level reduction in the calculation of his offense level under the guidelines, and should be resentenced. Defendant further argues that at resentencing, the Sentencing Guidelines should be treated as merely advisory and that a two-level enhancement under the guidelines for obstruction of justice should not be applied.

I. Sentencing Guidelines Amendment

On November 1, 2007, amendment 706 to the Sentencing Guidelines became effective. The amendment addressed the disparity in sentences between defendants who possess different forms of cocaine. Prior to the amendment, the Guidelines provided for a 100-to-1 ratio for sentences involving crack cocaine in comparison to those involving cocaine powder. For instance, the Guidelines assigned defendants the same base offense level for a crime involving 150 kilograms or more of powder cocaine and for a crime involving only 1.5 kilograms or more of crack cocaine. U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(1) (2002). Amendment 706 was designed to alter the 100-to-1 ratio. After the amendment, 4.5 kilograms of crack cocaine is now treated as the equivalent of 150 kilograms of cocaine powder. U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(1) (2007). The overall effect of the amendment is to reduce by two levels the base offense level of a defendant sentenced under section 2D1.1 for a crack cocaine offense. United States v. Rivera, 535 F. Supp.2d 527, 528-29 (E.D. Pa. 2008).

Amendment 706 applies retroactively, as it is one of the amendments listed in section 1B1.10(c). The retroactive effect of the amendment will be to reduce the base offense level of a defendant who has already been sentenced and imprisoned by two levels. According to section 1B1.10 of the Guidelines and 18 U.S.C. ยง 3582(c)(2), if the reduction in the base offense level changes the sentencing ...


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