Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:97cr42-RH

LAWRENCE SPENCER,

Defendant.

________________________________/

ORDER ESTABLISHING PROCEDURES ON POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 706

Defendant Lawrence Spencer appears to be eligible for a sentence reduction

under United States Sentencing Guidelines Amendments 706 and 715. This order

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

under which the government must, and Mr. Spencer 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 ordinarily turns on the type and quantity of drugs

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 1 of 7
Page 2 of 7

Case No: 4:97cr42-RH

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

§ 2D1.1 (2007) (hereafter cited as “Guidelines Manual”). 

Amendment 706 reduces the crack cocaine base offense level and provides a

mechanism for calculating the base offense level in cases involving both crack and

another drug. Amendment 715 further refines the calculations. In most

circumstances, the amount of the reduction is two levels. 

Amendment 706 became effective on November 1, 2007. Amendment 715

became effective on May 1, 2008.

II

When the Sentencing Commission adopts an amendment reducing a

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

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

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

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 2 of 7
Page 3 of 7

Case No: 4:97cr42-RH

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 Manual § 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

Manual § 1B1.10 to include Amendments 706 and 715 in the list of retroactive

amendments. The Commission imposed explicit limitations. First, a court must

not make a reduction unless Amendments 706 and 715 change the defendant’s

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 3 of 7
Page 4 of 7

Case No: 4:97cr42-RH

guideline 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

Sentencing Commission actions.

IV

Mr. Spencer was sentenced on September 3, 1998. His total offense level

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 4 of 7
Page 5 of 7

1

 Mr. Spencer’s original base offense level was 38 because he was

responsible for 1.5 kilograms of crack or more. That was the minimum quantity

covered by the maximum base offense level of 38. The presentence report

concluded that Mr. Spencer was responsible for at least 2.4 kilograms and possibly

as much as 6.9 kilograms. (See Presentence Report ¶13.) The new threshold for a

base offense level of 38 is 4.5 kilograms. The new base offense level of 36 covers

crack offenses involving at least 1.5 kilograms but less than 4.5 kilograms. Mr.

Spencer appears to come within this range. 

Case No: 4:97cr42-RH

was 35, his criminal history category was VI, and his guideline range thus was 292

to 365 months. The minimum mandatory sentence was 240 months. I sentenced

Mr. Spencer to 292 months, the low end of the guideline range. 

Under Amendment 706, Mr. Spencer’s recalculated total offense level is 33,

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

235 to 293 months.1 The minimum mandatory remains 240 months. Amendments

706 and 715 would allow a reduction of Mr. Spencer’s sentence to not less than

240 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). 

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 5 of 7
Page 6 of 7

Case No: 4:97cr42-RH

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

conclude that Mr. Spencer’s sentence should be reduced to 240 months, unless the

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

appropriately resolved,

IT IS ORDERED:

1. By October 10, 2008, the government must file a memorandum setting

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

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

position. 

2. 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 so indicate in its

memorandum. If the government does not so indicate, 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. 

3. At any time, Mr. Spencer may—but need not—file a supplemental

memorandum setting forth his position on the possible sentence reduction, together

with any supporting materials.

4. An order reducing Mr. Spencer’s sentence to 240 months may be entered

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 6 of 7
Page 7 of 7

Case No: 4:97cr42-RH

at any time after the deadline for the government’s memorandum (that is, after the

expiration of 14 days from the date of this order). 

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

supporting materials, it appears that a reduction to 240 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. Spencer, may set a deadline for any further response

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

6. The clerk shall provide a copy of this order to Mr. Spencer himself by

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

electronic filing system.

SO ORDERED on August 26, 2008.

s/Robert L. Hinkle 

Chief United States District Judge

Case 4:97-cr-00042-RH-CAS Document 58 Filed 08/26/08 Page 7 of 7