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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. 4:00cr02-RH

VAUGHN MOORE,

Defendant.

________________________________/

ORDER ESTABLISHING PROCEDURES ON POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 706

Defendant Vaughn Moore appears to be eligible for a sentence reduction

under United States Sentencing Guidelines Amendment 706. This order provides

notice of my intention to consider a reduction and establishes a procedure under

which the government must, and Mr. Moore may, address the issue.

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

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

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Case No: 4:00cr02-RH

attributed to the defendant. See United States Sentencing Guidelines Manual

§ 2D1.1 (hereafter cited as “Guidelines Manual”).

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.

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 a

court 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.

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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).

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

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

proceedings under § 3582(c)(2) “do not constitute a full resentencing of the

defendant.” Guidelines Manual § 1B1.10(a)(3). Reductions under § 3582(c)(2)

thus may be—and most commonly have been—handled on written submissions,

without a hearing.

III

Acting under its § 994(u) authority, the Commission amended Guidelines

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

The Commission imposed explicit limitations. First, a court must not make a

reduction unless Amendment 706 changes the defendant’s guidelines range. See

Guidelines Manual § 1B1.10(a)(1). Second, the Commission limited the extent of

any reduction. For a sentence within the original guideline range, a reduced

sentence must not be below the low-end of the amended guideline range. See

Guidelines Manual § 1B1.10(b)(2)(A). But for a sentence that was below the

original guideline range, a reduction to a sentence “comparably less than the

amended guideline range . . . may be appropriate.” Guidelines Manual §

1B1.10(b)(2)(B). Finally, the reduced term of imprisonment must not be less than

any applicable minimum mandatory sentence, nor less than the time the defendant

has already served.

Unless and until otherwise ordered, I intend to apply these limitations

exactly as Congress and the Sentencing Commission imposed them. It is true, of

course, that arguments can be made for a broader or more limited approach. This

order is not intended to prejudge these issues. But the burden will be on the party

challenging congressional or Sentencing Commission action, and there is no reason

to delay consideration of an explicitly authorized reduction while more esoteric

legal issues are briefed. By this order I announce my intention to consider only a

sentence reduction authorized by the terms of the governing statutes and

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1

 The statement of reasons supporting the judgment mistakenly identified

the range as 360 months to life.

Case No: 4:00cr02-RH

Sentencing Commission actions.

IV

Mr. Moore was sentenced on July 18, 2000. His total offense level was 34,

his criminal history category was VI, and his guideline range thus was 262 to 327

months.1 The minimum mandatory sentence was 10 years. I sentenced Mr. Moore

to 262 months, the low end of the guideline range. 

Under Amendment 706, Mr. Moore’s recalculated total offense level is 32,

his criminal history category remains VI, and his amended guideline range thus is

210 to 262 months. Amendment 706 would allow a reduction of Mr. Moore’s

sentence to not less than 210 months.

V

Any reduction is discretionary. In deciding whether and how much to

reduce a defendant’s sentence (within the limitations set forth above), a court may

consider the sentencing factors listed in 18 U.S.C. § 3553(a), the nature and

seriousness of the danger that a reduction would pose to any person or the

community, and the defendant’s post-sentencing conduct. See Guidelines Manual

§ 1B1.10, cmt. n. 1(B). 

Based on the existing record in this case, including the presentence report, I

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conclude that Mr. Moore’s sentence should be reduced to 210 months, unless the

government or Mr. Moore shows that it should not be. So that any issues may be

appropriately resolved,

IT IS ORDERED:

1. By October 9, 2008, the government must file a memorandum setting

forth its position—or lack of position—on the possible reduction of Mr. Moore’s

sentence. By the same date, the government may file materials in support of its

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

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

any appointment as counsel for purposes of Amendment 706 proceedings), the

government must so indicate in its memorandum. 

2. At any time, Mr. Moore may—but need not—file a memorandum setting

forth his position on the possible sentence reduction, together with any supporting

materials.

3. An order reducing Mr. Moore’s sentence to 210 months may be entered

at any time after October 9, 2008. 

4. If, based on the record and the government’s memorandum and

supporting materials, it appears that a reduction to 210 months may not in fact be

authorized or, as a matter of discretion, might not be entered, I will consider

appointing an attorney for Mr. Moore, may set a deadline for any further response

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by Mr. Moore, and may establish appropriate additional procedures.

5. The clerk must provide a copy of this order to Mr. Moore himself by mail

and to the attorneys of record through the electronic filing system.

SO ORDERED on August 25, 2008.

s/Robert L. Hinkle 

Chief United States District Judge

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