United States v . Scheffler 07-CR-065-SM 03/04/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 07-cr-65-2-SM
Opinion N o . 2008 DNH 048
Deidre Scheffler
O R D E R
Defendant moves to amend the sentence imposed based, inter
alia, on the United States Sentencing Commission’s retroactive
amendment of the “crack” cocaine guideline (Amendments 706 and
7 1 1 ) , effective March 3 , 2008.
At sentencing, on July 3 0 , 2007, defendant’s guideline Total
Offense Level (TOL) was properly calculated as 15 and her
Criminal History Category (CHC) as I I I , which yielded a
recommended term of imprisonment of 24-30 months. The court,
however, imposed a non-guidelines or variant (i.e., Booker 1 )
sentence of 18 months, taking into account both the sentencing
factors described in 18 U.S.C. § 3553(a), and defense counsel’s
argument that: the offense involved a single sale of a
relatively small amount of “crack” cocaine; defendant was not
acting completely independently, but rather was heavily
influenced by her drug-dealing boyfriend upon whom she depended
1
United States v . Booker, 543 U.S. 220 (2005).
for food and shelter; there was an extended delay of a year and a
half between the offense conduct and defendant’s arrest, during
which she made substantive and effective efforts to address her
drug addiction; defendant suffered from a background of physical
and sexual abuse; she voluntarily elected detention in order to
take advantage of drug treatment programs, and, finally, the
Sentencing Commission had, at that time, recognized the
unrealistic nature of the crack-powder disparity in guideline
sentencing, and had proposed an amendment to address that
anomaly.
Defendant seeks the benefit of the retroactive reduction in
the crack guideline, in the form of a further reduction of her
sentence by 25% — representing a reduction from the low end of
the newly applicable guideline range occasioned by the
retroactive reduction of the crack guideline, that is consistent
with the reduction under Booker, from the low end of the
originally calculated guideline range. That i s , the original
calculation should be retroactively reduced from TOL 15/CHC III
(24-30 mos.) to TOL 13/CHC III (18-24 m o s . ) , and the sentence
previously imposed (18 mos.) should likewise be reduced by about
25% — the amount the bottom of the range has been retroactively
lowered (i.e., 6 is 25% of 2 4 ) .
2
The amended policy statement issued by the Commission
relative to reducing sentences to imprisonment as a result of a
retroactively applied amended guideline range, as we have here,
provides, in pertinent part, as follows:
In General. In a case in which a defendant is serving
a term of imprisonment, and the guidelines 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 defendants’ term of imprisonment as provided
by 18 U.S.C. § 3582(c)(2). As required by
18 U.S.C.
§ 3582(c)(2), any such reduction in the defendant’s
term of imprisonment shall be consistent with this
policy statement.
U.S.S.G. § 1B1.10(a)(1).
Exception. If the original term of imprisonment
imposed was less than the term of imprisonment provided
by the guideline range applicable to the defendant at
the time of sentencing, a reduction comparably less
than the amended guidelines range determined under
subdivision (1) of this subsection may be appropriate.
However, if the original term of imprisonment
constituted a non-guideline sentence determined
pursuant to 18 U.S.C. § 3553(a) and United States v .
Booker, 543 U.S. 220 (2005), a further reduction
generally would not be appropriate.
U.S.S.G. § 1B1.10(b)(2)(B).
The government opposes defendant’s motion on grounds that
the court already took into account the anticipated crack
guideline reduction when it fashioned its Booker sentence, so no
further reduction is warranted. Defendant counters that while
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the court explicitly did take the then-proposed reduction into
account, several other factors also animated the decision to
impose a Booker sentence, so the full reduction contemplated
under the applicable policy statement should obtain.
First, to the extent defendant seeks a full resentencing on
the theory that the retroactive crack amendment opens the door to
such a process, the motion is denied. Booker applied at the time
of sentencing and, as noted, defendant actually received a Booker
sentence. And, the court took into account the proposed
amendment in fashioning the variant sentence. S o , even if a full
resentencing would be appropriate, which I doubt, I still would
not exercise my discretion to resentence in full, since the
outcome would be the same — the only variable of significance
between the original sentencing and the current motion is the
fact that the crack amendment is now retroactive.2
Second, to the extent the government says no further
reduction is warranted because the then-proposed change in the
crack guideline was taken into account in fashioning the Booker
2
That defendant has a good record post-sentencing, and has
continued to make substantial progress in dealing with her
addiction, are not to be overlooked. But those facts relate
primarily to the availability of a sentence reduction under the
retroactive amendment, and not to her entitlement to a full
resentencing hearing. See, e.g., U.S.S.G. § 1B1.10(a)(3) and
Application Note 1 ( B ) .
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sentence imposed, it overlooks the fact that the 18 months
imposed (under Booker) is now equivalent to the bottom of the
newly-applicable guideline range. S o , leaving the sentence as is
would effectively deprive defendant of the sentence reduction
allowed in substantial part on grounds unrelated to the then-
proposed crack guideline amendment.
It is not possible to quantify with precision just what
mathematical fraction accurately reflects that part of the
reduced sentence attributable to the anticipated crack guideline
adjustment and what part is attributable to the other factors
noted by this court. Suffice it to say that part of the Booker
reduction did relate to the anticipated amendment, but certainly
not all, and certainly not none.
The sentence imposed under Booker was six months lower than
the bottom of the then-applicable guideline range (18 mos.
instead of 24 m o s ) . Eighteen months, as noted at sentencing,
equated to TOL 13/CHC III. Now, TOL 13/ CHC III is the correct
recalculated advisory guideline range, which provides for a low
end of 18 months imprisonment. Considering that retroactively
adjusted advisory range (which fully accounts for the amendment
as a factor in determining a variant sentence), a further
reduction is warranted to account for the other § 3553(a) factors
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upon which the court based the variant sentence previously
imposed. That reduction, the amended policy statement wisely
counsels, should generally be “comparably less” than the amended
guideline range when compared to the reduction from the
originally calculated guideline range.
Conclusion
Defendant’s motion is granted. An amended judgment shall be
entered imposing a sentence of 13 months imprisonment. That
sentence constitutes a reduction roughly approximate to the
guidelines-counseled reduction, and also reflects the variant or
Booker sentence the court would most likely have imposed in July
of 2007, had the crack guideline amendment been effective and
applicable to defendant’s case.
SO ORDERED.
Steven J. __McAuliffe
Chief Judge
March 4, 2008
cc: Aixa Maldonado-Quinones, AUSA
Jeffrey S. Levin, Esq.
U.S. Probation
U.S. Marshal
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