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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. 4:97cr36-RH

HERBERT DICKEY,

Defendant.

________________________________/

ORDER ESTABLISHING PROCEDURES ON POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 706

Defendant Herbert Dickey appears eligible for a sentence reduction under

United States Sentencing Guidelines Amendment 706. This order provides notice

of my intention to consider a reduction on my own motion. The order establishes a

procedure under which the government must, and Mr. Dickey may, address the

issue.

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Case No: 4:97cr36-RH

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

attributed to the defendant. See United States Sentencing Guidelines Manual

§ 2D1.1.

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

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

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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

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,

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

defendant.” United States Sentencing 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, on December 11, 2007, the Commission

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

amendments. The Commission imposed explicit limitations. First, the

Commission set March 3, 2008, as the effective date for retroactivity; courts must

not make a reduction effective prior to that date. Second, courts must not make a

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

the Commission limited the permissible reduction for a defendant serving a

sentence within the original guidelines range; a court must not reduce such a

sentence below the low-end of the amended guidelines range. Because the low end

of a guidelines range can never be lower than any minimum mandatory sentence,

this third limitation confirms what would be clear from the governing statutes

anyway: a court must not reduce a sentence below any applicable minimum

mandatory. 

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

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

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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 on my

own motion—without a motion by either side—only a sentence reduction

authorized by the terms of the governing statutes and Sentencing Commission

actions.

IV

Mr. Dickey was sentenced on March 2, 1998. His total offense level was 37,

his criminal history category was II, and his guidelines range thus was 235 to 293

months. The minimum mandatory sentence was 120 months.

Under Amendment 706, Mr. Dickey’s recalculated total offense level is 35,

his criminal history category remains II, and his amended guidelines range thus is

188 to 235 months. Amendment 706 would allow a reduction of Mr. Dickey’s

sentence to not less than 188 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

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

community, and the defendant’s post-sentencing conduct. See United States

Sentencing Manual § 1B1.10 Commentary note 1(B). 

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

intend to reduce Mr. Dickey’s sentence to 188 months, unless the government or

Mr. Dickey shows that I should not do so. So that any issues may be appropriately

resolved,

IT IS ORDERED:

1. Within 14 days, the government must file a memorandum setting forth its

position—or lack of position—on the possible reduction of Mr. Dickey’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 shall so indicate in its memorandum. 

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

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

materials.

3. An order reducing Mr. Dickey’s sentence to the lowest authorized

sentence as calculated in the body of this order may be entered at any time after the

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deadline for the government’s memorandum (that is, after the expiration of 14 days

from the date of this order). 

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

supporting materials, it appears that the maximum authorized reduction as

calculated in the body of this order may not in fact be authorized or, as a matter of

discretion, might not be entered, I will consider appointing an attorney for

defendant, may set a deadline for any further response by the defendant, and may

establish appropriate additional procedures.

SO ORDERED this 14th day of February, 2008.

s/Robert L. Hinkle 

Chief United States District Judge

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