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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. 4:97cr08-RH

DONNELL GALLON,

Defendant.

________________________________/

ORDER ESTABLISHING PROCEDURES ON POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 706

Defendant Donnell Gallon has moved 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. Gallon 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: 4:97cr08-RH

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

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.

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Case No: 4:97cr08-RH

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 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.” 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

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Case No: 4:97cr08-RH

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

not make a reduction unless Amendment 706 changes the defendant’s guideline

range. Second, the Commission limited the permissible reduction for a defendant

serving a sentence within the original guideline range; a court must not reduce

such a sentence below the low-end of the amended guideline range. Finally, a

court must not reduce a sentence below any applicable minimum mandatory. 

IV

Mr. Gallon was sentenced on June 4, 1997. His total offense level was 35,

his criminal history category was VI, and his guideline range thus was 292 to 365

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

to 210 months, a downward departure from the guideline range based on the

government’s substantial assistance motion. See Guidelines Manual § 5K1.1. 

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

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

235 to 293 months. A reduced sentence of 169 months would bear the same

relation to the amended guideline range as the existing sentence bears to the

original guideline range. 

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

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Case No: 4:97cr08-RH

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

conclude that Mr. Gallon’s sentence should be reduced to 169 months, unless the

government or Mr. Gallon 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. Gallon’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. 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. 

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 2. At any time, Mr. Gallon may—but need not—file a supplemental

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

with any supporting materials.

3. An order reducing Mr. Gallon’s sentence to 169 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 169 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. Gallon, may set a deadline for any further response

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

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

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

electronic filing system.

SO ORDERED on August 25, 2008.

s/Robert L. Hinkle 

Chief United States District Judge

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