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United States v. Barr

United States District Court, D. Rhode Island

September 24, 2015



John J. McConnell, Jr. United States District Judge

This matter is before the Court on the Government's Motion for Reconsideration (ECF No. 31) of this Court's Order (ECF Nos. 29 & 30) reducing the sentence of defendant Eddie Torie Barr pursuant to 18 U.S.C. § 3582(c)(2). The Court is required to GRANT the Government's motion.



The United States Sentencing Guidelines Section 1B 1.10 as amended by Amendment 759 rejects United States v. Cardosa, 606 F.3d 16 (1st Cir. 2010) and precludes Mr. Barr's eligibility for the retroactive sentence reduction adopted by Amendment 782. While this Court finds itself bound by Amendment 759 due to the holding of Dillon v. United States, 560 U.S. 817 (2010), this Court nonetheless urges the Sentencing Commission to rescind this ill-wrought Amendment. Amendment 759 is needlessly harsh. Its binding and onerous effects flout the spirit of Booker v. United States, 543 U.S. 220 (2005), may violate the Constitution, are unsupported by any policies enunciated at its adoption, and are in significant tension with the policies behind Amendment 782.



On May 7, 2012, Mr. Barr was sentenced based on the crack cocaine guideline range, after this Court found that "in his [case] ... the career offender application is too harsh and . . . n[o]t appropriate given all [his] characteristics." ECF No. 18 at 35. The First Circuit was clear in its holding and rationale in United States v. Cardosa that if a district judge actually based the defendant's sentence on a guideline range that was subsequently reduced, rather than the career offender range, that judge had the discretion, granted by statute, to reduce the sentence accordingly. 606 F.3d at 16. The First Circuit found that the sentencing judge was in the best position to make this determination. Id. at 22.

Unfortunately, the United States Sentencing Commission decided to undo the First Circuit's holding by inventing the legal fiction that any person who could have been sentenced under the career offender provision, was sentenced under that provision, for purposes of determining eligibility for a sentence reduction.[1] This fiction had the effect of removing the sentencing judge's discretion to reduce certain defendants' sentences. While this Court disagrees with the Sentencing Commission's diktat, the Court's statutory power to reduce a sentence is limited to situations when "a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The binding policy statement governing § 3582(c)(2) proceedings is USSG §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range) as amended by USSG App. C Vol. Ill. Amendment 759. Dillon, 560 U.S. at 819. That policy statement precludes a reduction of Mr. Barr's sentence.

Amendment 759 of the United States Sentencing Guidelines treats Mr. Barr as though he were sentenced based on the career offender provision, even though he was not. USSG App. C Vol. Ill. Amdt. 759. At Mr. Barr's 2012 sentencing, this Court determined that justice would not be served by applying the career offender provision to Mr. Barr, and instead sentenced Mr. Ban-under the crack guidelines. ECF No. 29 at 1-2 ("sentencing goals would not be served by sentencing Mr. Barr as a career offender").

The crack guidelines were subsequently lowered by two points in 2014, and this sentencing reduction was made retroactive. USSG Supp. App. C, Amdt. 782. The Sentencing Commission explained that the reduction "would permit resources otherwise dedicated to housing prisoners to be used to reduce overcrowding, enhance programming designed to reduce the risk of recidivism, and to increase law enforcement and crime prevention efforts, thereby enhancing public safety." Id. The reduction achieved these salutary effects without diluting the incentives for defendants to plead guilty, cooperate with authorities, or avoid recidivism.[2] Id. The policies driving Amendment 782 certainly apply to Mr. Barr's situation and support its retroactive application to his case. However, the Commission's earlier Amendment 759 renders this preferred result legally unreachable.

In 2011, the Sentencing Commission amended its rules for the retroactive application of sentencing reductions by inserting a parenthetical into the Commentary of §1B1.10. As a result, the amended provision now reads as follows:

Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (d) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guideline Manual or any variance). Accordingly, a reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. ยง 3582(c)(2) and is not consistent with this policy statement if: (i) none of the amendments listed in subsection (d) is applicable to the defendant; or (ii) an amendment listed in subsection (d) is applicable to the defendant but the amendment does not have ...

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