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Case No. 5:98cr36-RH

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:98cr36-RH

CORY FLUELLEN,

Defendant.

________________________________/

ORDER ESTABLISHING PROCEDURES ON A POSSIBLE

SENTENCE REDUCTION UNDER AMENDMENT 782

The defendant Cory Fluellen has moved to reduce his sentence based on 

United States Sentencing Guidelines Amendment 782. This order sets out my 

preliminary analysis showing that Mr. Fluellen is eligible for a reduction, gives 

notice to both sides of information received from the probation officer on Mr. 

Fluellen’s prison disciplinary record, and gives both sides an opportunity to be 

heard. 

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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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.

III

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

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

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The change took effect on November 1, 2014. But the Commission provided that a 

sentence reduction under Amendment 782 cannot take effect until November 1, 

2015.

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. Fluellen was sentenced on March 20, 2000. His total offense level was 

40, the criminal history category was III, and the guideline range was 360 months 

to life. The minimum mandatory sentence was 10 years. The district judge who 

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was presiding over the case at that time sentenced Mr. Fluellen to 360 months, the 

low end of the guideline range. 

Under Amendments 706 and 715, Mr. Fluellen’s recalculated total offense 

level was 38, the criminal history category remained III, and the amended 

guideline range thus was 292 to 365 months. By order entered on April 24, 2008, 

the court reduced Mr. Fluellen’s sentence to 292 months.

Under Amendment 750, Mr. Fluellen’s recalculated total offense level was 

36, the criminal history category remained III, and the amended guideline range 

was 235 to 293 months. By order entered on February 15, 2012, the court reduced 

Mr. Fluellen’s sentence to 235 months.

Under Amendment 782, Mr. Fluellen’s recalculated total offense level is 34, 

the criminal history category remains III, and the amended guideline range is 188 

to 235 months. Amendment 782 would allow a reduction of Mr. Fluellen’s 

sentence to not less than 188 months or time served.

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 

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community, and the defendant’s post-sentencing conduct. See Guidelines Manual

§ 1B1.10 cmt. n.1(B). 

The probation officer has provided a memorandum addressing Mr. 

Fluellen’s extensive disciplinary record in the Bureau of Prisons. If accurately 

recounted in the memorandum, the disciplinary record would allow the court to 

deny any further sentence reduction. A copy of the probation officer’s 

memorandum is attached to this order. 

So that the issues may be properly considered,

IT IS ORDERED:

1. By September 21, 2015, the government may file a memorandum 

addressing the possible reduction of Mr. Fluellen’s sentence. By the same date, the 

government may file materials in support of its position. 

2. Also by September 21, 2015, Mr. Fluellen may file a memorandum 

and supporting materials addressing his prison disciplinary record or any other 

issue. 

3. Mr. Fluellen’s motion to reduce his sentence will be taken under 

advisement based on the record compiled as of September 21, 2015, and a ruling 

may—and probably will—be entered without a hearing. 

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4. The clerk must provide a copy of this order to Mr. Fluellen himself by 

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

electronic filing system. 

SO ORDERED on August 22, 2015.

s/Robert L. Hinkle

United States District Judge

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