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Case No. 5:02cr17-RH

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:02cr17-RH

MICHAEL JOHN HARDY,

Defendant.

_______________________________/

ORDER ESTABLISHING PROCEDURES ON A POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 782

The defendant Michael John Hardy appears eligible for a sentence reduction 

under United States Sentencing Guidelines Amendment 782. 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. Hardy 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” 

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Case No. 5:02cr17-RH

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 

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

(“Guidelines Manual”) § 2D1.1 (2014). 

Amendment 782 became effective on November 1, 2014. The amendment 

reduced the base offense level for most drug offenses. This came after earlier 

amendments that also reduced the base offense level for most crack-cocaine 

offenses. Amendment 706 became effective on November 1, 2007; Amendment 

715 became effective on May 1, 2008; and Amendment 750 became effective on 

November 1, 2011.

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 a sentence 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).

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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 Sentencing Commission,” 

within the meaning of § 3582(c)(2), are set out in Guidelines Manual § 1B1.10. As 

set out 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.

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III

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

Manual § 1B1.10 to include Amendment 782 in the list of retroactive amendments.

The change took effect on November 1, 2014.

The Guidelines impose explicit limits. First, a court must not reduce a 

sentence unless the amendment changed the defendant’s guideline range. See id.

§ 1B1.10(a)(1). Second, the Guidelines limit 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 id. § 1B1.10(b)(2)(A). For a 

sentence that was below the original guideline range as a result of a government 

motion indicating the defendant provided substantial assistance in the investigation 

or prosecution of others, a reduction to a sentence “comparably less than the 

amended guideline range . . . may be appropriate.” Id. § 1B1.10(b)(2)(B). Finally, 

the reduced term of imprisonment must not be less than any applicable minimum 

mandatory sentence, see id. § 1B1.10, cmt. n.1(A), nor less than the time the 

defendant has already served, see id. § 1B1.10(b)(2)(C).

IV

Mr. Hardy pleaded guilty to a drug trafficking offense and to possessing and

carrying a firearm during and in relation to the drug offense. He was sentenced on 

December 12, 2002. On the drug count, Mr. Hardy’s total offense level was 31, his

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criminal history category was IV, and the guideline range was 151 to 188. The 

minimum mandatory sentence was 10 years. On the firearm count, the governing 

statute required a consecutive sentence of at least 5 years. I sentenced Mr. Hardy to 

151 months on the drug count—the low end of the range—and to the mandatory 

consecutive term of 60 months on the firearm count, for a total of 211 months.

Amendments 706, 715, and 750 did not affect Mr. Hardy, because his drug 

offense involved methamphetamine, not crack cocaine.

Under Amendment 782, the revised total offense level on the drug count is 

29, the criminal history category remains IV, and the amended guideline range is

121 to 151 months. Amendment 782 does not affect the firearm sentence. So 

Amendment 782 would allow a reduction of Mr. Hardy’s sentence to not less than 

181 months, consisting of 121 months on the drug count and 60 months on the 

firearm count.

V

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

a defendant’s sentence (within the limits set out 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).

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

intend to reduce Mr. Hardy’s sentence to 181 months or time served, unless the 

government or Mr. Hardy shows that I should not do so.

So that any issues may be appropriately resolved,

IT IS ORDERED:

1. By January 17, 2017, the government must file a memorandum setting out 

its position—or lack of a position—on the possible reduction of Mr. Hardy’s 

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

position. 

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

addressing the possible sentence reduction, together with any supporting materials.

3. An order reducing Mr. Hardy’s sentence may be entered at any time after 

January 17, 2017. 

4. The clerk must provide copies of this order to Mr. Hardy himself by mail 

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

electronic filing system.

SO ORDERED on January 2, 2017.

s/Robert L. Hinkle

United States District Judge

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