United States District Court, D. Rhode Island
USA, Plaintiff: Stephen G. Dambruch, U.S. Attorney's
Office, Providence, RI.
McConnell, Jr., United States District Judge.
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.
United States Sentencing Guidelines Section 1B1.10 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, 130 S.Ct. 2683,
177 L.Ed.2d 271 (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, 125 S.Ct. 738, 160 L.Ed.2d 621 (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.
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.
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. 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 U.S.S.G. §
1B1.10 (Reduction in Term of Imprisonment as a Result of
Amended Guideline Range) as amended by U.S.S.G. App. C Vol.
III, Amendment 759. Dillon, 560 U.S. at 819. That
policy statement precludes a reduction of Mr. Barn's
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. U.S.S.G. App. C Vol. III,
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. Barr under the crack guidelines. ECF No. 29 at 1-2
(" sentencing goals would not be served by sentencing
Mr. Barr as a career offender" ).
crack guidelines were subsequently lowered by two points in
2014, and this sentencing reduction was made retroactive.
U.S.S.G. 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. 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.
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 rangethat 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. § 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 the effect ...