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1

28 U.S.C. § 994(o) requires the Commission to “periodically . . . review and revise . . .

the guidelines.”

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 1:97-cr-00006-MP

THOMAS JOSEPH SHEPPARD,

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Motion to Reduce Sentence (Re: Retroactive

Application of Sentencing Guidelines to Crack Cocaine Offense 18 U.S.C. § 3582) by Thomas

Joseph Sheppard, Doc. 20. Mr. Sheppard does not argue that his sentence should be reduced

under the Sentencing Guidelines changes relating to crack cocaine. Instead, he argues that his

sentence should be reduced because of amendments to the Guidelines concerning the calculation

of criminal history categories that were also adopted on November 1, 2007. 

Under 18 U.S.C. § 3582(c), a sentencing Court may reduce an already-imposed sentence

based on an amendment to the Sentencing Guidelines in certain situations. Specifically, §

3582(c) provides:

In 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),1

 upon motion of the

defendant, 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 they are applicable, if such a reduction is consistent
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Case No: 1:97-cr-00006-MP

with applicable policy statements issued by the Sentencing Commission. 

Effective November 1, 2007, the United States Sentencing Commission amended some

of its criminal history calculations. With effective dates of November 1, 2007, it was clear that

these Amendments would apply to those sentenced after that time. However, the question

immediately arose whether these Amendments should be applied retroactively to sentences

imposed before November 1, 2007. Pursuant to 18 U.S.C. § 3582(c), such retroactive

application is only proper if (1) the defendant’s sentencing range has subsequently been lowered

by the Sentencing Commission; (2) the reduction is consistent with the factors set forth in

section 3553(a) to the extent they are applicable; and (3) such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission. 

 Here, Mr. Sheppard’s criminal history category would be precisely the same if it were

calculated today, with the current Guidelines. Several of the objections he raises in the present

motions, such as certain crimes being too far in the past or too minor to be counted towards his

criminal history, he also raised at the time of his original sentencing, and were litigated then. 

The minor offenses that he claims should not have caused him to gain criminal history points

still count for points under the current system. Mr. Sheppard would still be categorized as a

violent career criminal under the current system. 

Because Mr. Sheppard’s sentencing range has not been lowered by the Sentencing

Commission by the operation of any amendment since his original sentencing, the Court need

not analyze whether a reduction would be consistent with the factors set forth in the Guidelines

or whether a reduction would be consistent with policy statements issued by the Sentencing

Commission. Instead, the fact that his criminal history category, and therefore his sentence,

would be the same if calculated under the most current Guidelines is dispositive. Accordingly,
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Case No: 1:97-cr-00006-MP

the Motion to Reduce Sentence, Doc. 20, is DENIED. 

DONE AND ORDERED this 3rd day of March, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge