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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:00cr28-RH

CLARENCE LORENZO HARRISON,

Defendant.

_________________________________/

ORDER DENYING MOTION TO REDUCE

SENTENCE UNDER AMENDMENT 706

Defendant Clarence Lorenzo Harrison has moved for a sentence reduction

under Sentencing Guidelines Amendment 706. That amendment revised the crackcocaine guidelines. But Mr. Harrison’s guideline range was determined under the

career-offender provisions, not based on the crack-cocaine guidelines. Mr.

Harrison thus is not eligible for a reduction. This order denies relief. 

I

The Sentencing Guidelines establish a guideline range for each defendant. 

The range is based on the defendant’s “total offense level” and “criminal history

category.” The total offense level is based on the defendant’s “base offense level”

with increases or decreases based on specific offense characteristics. For drug

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Case No: 4:00cr28-RH

offenses, the base offense level ordinarily turns on the type and quantity of drugs

properly attributed to the defendant. See U.S. Sentencing Guidelines Manual

§ 2D1.1 (2007) (hereafter cited as “Guidelines Manual”). For a defendant who is a

“career offender,” however, the base offense level is the greater of the drug offense

level or a separate career offender offense level. See Guidelines Manual

§ 4B1.1(b).

On May 1, 2007, the United States Sentencing Commission adopted

Amendment 706. The amendment reduces the crack cocaine base offense level. In

most circumstances, the amount of the reduction is two levels. The amendment

also provides a mechanism for calculating the base offense level in cases involving

both crack and another drug. In most such cases, the result is again a two-level

decrease. The amendment does not, however, affect the separate career offender

base offense level.

Congress did not act to block the amendment. The amendment thus became

effective on November 1, 2007. The amendment applies to sentences imposed on

or after that date.

II

When the Sentencing Commission adopts an amendment reducing a

guideline range, the Commission has express statutory authority—indeed, it may

even have a statutory duty—to determine whether and under what circumstances

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Case No: 4:00cr28-RH

courts will be allowed to apply the amendment retroactively to sentences imposed

prior to the amendment’s effective date. The statute provides:

If the Commission reduces the term of imprisonment recommended in

the guidelines applicable to a particular offense or category of

offenses, it shall specify in what circumstances and by what amount

the sentences of prisoners serving terms of imprisonment for the

offense may be reduced.

28 U.S.C. § 994(u).

 

When the Commission determines that an amendment may be applied

retroactively, a court may reduce a sentence, but only under the circumstances and

to the extent specified by the Commission. The court may act on its own motion or

on motion of a defendant or the Bureau of Prisons. The statute that authorizes a

sentence reduction provides:

[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.

18 U.S.C. § 3582(c)(2) (emphasis added). 

By its plain terms, the statute allows a reduction only when a defendant has

been sentenced “based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.” For a defendant sentenced based on the career

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Case No: 4:00cr28-RH

offender guidelines—not based on the crack guidelines that were changed by

Amendment 706—this means that no reduction is authorized.

The “applicable policy statements issued by the Commission,” within the

meaning of § 3582(c)(2), are set forth in Guidelines Manual § 1B1.10. Acting

under its § 994(u) authority, on December 11, 2007, the Commission amended

Guidelines Manual § 1B1.10 to include Amendment 706 in the list of retroactive

amendments, effective as of March 3, 2008. But § 1B1.10 confirms what the

statute makes clear: a court may reduce a defendant’s sentence only if “the

guideline range applicable to that defendant has subsequently been lowered” by a

retroactive amendment. Guidelines Manual § 1B1.10(a)(1) (emphasis added). 

III

Mr. Harrison was sentenced on September 28, 2000. Under Guidelines

Manual § 2D1.1 the base offense level for the type and quantity of drugs for which

Mr. Harrison was responsible was 32. Under Amendment 706, as further amended

by Amendment 715, the base offense level for that type and quantity of drugs is 30. 

But the base offense level provided for drug offenses made (and still makes) no

difference, because Mr. Harrison was a career offender. Under the career offender

guideline—Guidelines Manual § 4B1.1(b)(A)—Mr. Harrison’s base offense level

was (and is) 37. Thus Mr. Harrison’s base offense level after adoption of

Amendment 706, as before, is 37. After adjustment for acceptance of

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 The government says that notwithstanding its substantial assistance motion,

the guideline range was and is life, so that Amendment 706 would be inapplicable

even if Mr. Harrison were not a career offender. This is inconsistent with the

position the government took at the time of the original sentencing; at that time, the

government asserted the guideline range was 262 to 327 months and that the court

had no discretion to impose a lower sentence. None of this makes a difference

now, however, because even without regard to the minimum mandatory, the

guideline range would be determined based on the career-offender provisions, not

those applicable to crack-cocaine offenses.

Case No: 4:00cr28-RH

responsibility, Mr. Harrison’s total offense level is 34, his criminal history

category is VI, and his guideline range is 262 to 327 months. 

I sentenced Mr. Harrison to 262 months, the low end of the range and a

sentence below the otherwise applicable minimum mandatory, based on the

government’s substantial assistance motion. See 18 U.S.C. § 3553(e); Guidelines

Manual § 5K1.1.1

 I later reduced the sentence to 168 months and subsequently to

132 months based on the government’s post-sentencing substantial assistance

motions. See 18 U.S.C. § 3553(e); Fed. R. Crim. P. 35(b). Mr. Harrison is not

eligible for a further reduction under Amendment 706.

For these reasons,

IT IS ORDERED:

1. Clarence Lorenzo Harrison’s motion to reduce his sentence under United

States Sentencing Guidelines Amendment 706 (documents 59 and 60) is DENIED.

2. The clerk must provide a copy of this order to Mr. Harrison himself by

mail and to the attorneys of record and to the Federal Public Defender through the

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electronic filing system.

3. If the government asserts that the presentence report ought not be made

available to the Federal Public Defender (for his consideration of whether to seek

appointment or take further action) the government must file a notice so indicating

by October 9, 2008. If the government files no notice, then without further order

the probation department may provide a copy of the presentence report to the

Federal Public Defender, subject to the same restrictions on copying and disclosure

as routinely attend the initial disclosure of a presentence report. 

SO ORDERED on August 25, 2008.

s/Robert L. Hinkle 

Chief United States District Judge

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