United States District Court, D. Maine
ORDER ON MOTION TO MODIFY SENTENCE
D. Brock Hornby United States District Judge.
The defendant seeks a sentence modification under 18 U.S.C. § 3582(c) on account of the lowered Guideline sentencing ranges established in Amendment 782 for cocaine base (crack cocaine). The government opposes any sentence reduction. In sentencing the defendant in 2009, I did not make a specific crack quantity finding, but instead, at the parties’ request, used a quantity range that generated a particular Base Offense Level. Under the amended Guidelines, that quantity range now covers two different Base Offense Levels. The defendant argues that he should get the benefit of the lower level; the government argues that he should be held responsible for the higher level. I apply the lower level and reduce the defendant’s sentence.
In the Presentence Report for the 2009 sentencing, the Probation Officer calculated a specific crack quantity for which he recommended that the defendant be held accountable. Presentence Report ¶ 6. But both the government and the defendant objected to that calculation, and the government stated that because of witness problems it could not prove the amount that the Probation Officer proposed. See Addendum to the Presentence Report (“Addendum”), pp. 17-18. Ultimately, I accepted a written plea agreement that created a binding stipulation under Fed. R. Crim. P. 11(c)(1)(C) that the drug quantity for which the defendant was responsible was 500 grams to 1.5 kilograms of crack. See Agreement to Plead Guilty (With Stipulations and Appeal Waiver) (ECF No. 212), p. 3. That 500g to 1.5kg range generated a Base Offense Level of 34 under the then applicable Guidelines. See U.S.S.G. § 2D1.1(c)(3) (2008). The defendant’s Total Offense Level was 37 and his Criminal History was Category III. His sentencing range therefore was 262 to 327 months imprisonment. Applying the section 3553(a) statutory factors, see United States v. Booker, 543 U.S. 220, 245 (2005), I varied downward from that range and sentenced him to 210 months.
But 500g to 1.5kg is no longer a definitive marker. Instead, a quantity of 840g to 2.8kg of crack now generates a Base Offense Level of 32, while a quantity of 280g to 840g generates a Base Offense Level of 30. Those Base Offense Levels generate Total Offense Levels of 35 and 33 when applied to this defendant and, with a Criminal History of III, Guideline prison ranges of 210 to 262 months and 168 to 210 months, respectively.
Therefore, the Guideline range for this defendant is lower than that applied in 2009 regardless of whether he is responsible for more than, or less than, 840 grams. But my original sentence of 210 months applied the Booker factors to “vary” below the then applicable Guideline range. A court applying the retroactive crack quantity amendments cannot sentence below the minimum sentence of the new Guideline range. See U.S.S.G. § 1B1.10(b)(2)(A). Thus, if the defendant’s new Guideline range should be 210 to 262 months, he cannot obtain a reduction because his original sentence was already at the bottom of that new range. But if the Guideline range of 168 to 210 months applies, the defendant can seek a reduction because his sentence could be as low as 168 months, far lower than the original sentence.
In circumstances like these where the original sentencing judge did not make a specific drug quantity calculation, the circuit courts generally have ruled that the “modification judge” (here, I am both the original sentencing judge and the modification judge) should review the entire record that was before the original sentencing judge and make a determination, by a preponderance of the evidence, of the quantity for which the defendant is responsible (without contradicting any earlier findings). See, e.g., United States v. Wyche, 741 F.3d 1284, 1293 (D.C. Cir. 2014); United States v. Anderson, 707 F.3d 973, 975 (8th Cir. 2013); United States v. Battle, 706 F.3d 1313, 1319 (10th Cir. 2013); United States v. Valentine, 694 F.3d 665, 670 (6th Cir. 2012); United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010). I am unable to make such a quantity determination on the record alone. What the record consists of is the defendant’s admission at his guilty plea to the prosecution version that asserted a quantity of “over 50 grams of cocaine base.” See Gov’t’s Am. Version of the Offense (ECF No. 187), pp. 3-4. I also have the Probation Officer’s proposed drug quantity in the Presentence Report at the original sentencing, but it is entitled to no weight because both parties agreed that it could not be proven and because I accepted the Plea Agreement stipulation of 500g to 1.5kg. There was no other evidence presented, and thus the record alone does not permit me to determine whether the defendant should be held responsible for more than, or less than, 840 grams of crack.
In opposing any reduction, the government says “that the Court must make specific findings that the drug quantity involved in this offense results in a lower sentencing guideline range. Without such a finding, the defendant has failed to establish he is eligible for a sentencing modification.” Gov’t’s Objection, pp. 1-2. I have made that finding. As I said above, the new Guideline range is lower, regardless of where the defendant fits within the quantity range. Nevertheless, the question remains which of the two possible Guideline ranges applies. Under the higher range, my 2009 variant sentence gave the defendant all that he can obtain. But under the lower range, he can seek a further reduction. On the factual issue of precisely what crack quantity should be assigned to him, the evidence is in equipoise. Where a factual issue is in equipoise, the conventional way to resolve the decisional dilemma is through burden allocation.
The statutory basis for a sentence modification like that requested here is 18 U.S.C. § 3582(c)(2). It states:
[I]n 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.
There is no mention of burden allocation. The pertinent Guideline states:
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 (d) below, the court may reduce the defendant’s 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. . . .
A reduction in the defendant’s term of imprisonment is not consistent with this policy statement and therefore is not authorized ...