IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) No. 2:00-CR-171

)

DANTE PALM, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion for Retroactive

Application of Sentencing Guidelines to Crack Cocaine Offense,

filed by Defendant, Dante Palm, on July 17, 2008. For the reasons

set forth below, Defendant’s request for a sentencing modification

(DE #661)is DENIED. 

BACKGROUND

On February 20, 2003, this Court accepted Palm’s plea

agreement, and he was adjudged guilty of Count 1, conspiracy to

distribute and possess with intent to distribute crack cocaine and

marijuana. That same day, Defendant was sentenced to a 188 month

term of imprisonment. Defendant filed a letter on February 14,

2008, stating his belief that he was entitled to a sentence

modification pursuant to 18 U.S.C. section 3582(c) in light of the

November 1, 2007, United States Sentencing Guidelines, U.S.S.G.

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§2D1.1(c) "crack" amendment as applied retroactively by U.S.S.G.

¶1B1.10.

Upon receiving the instant request, this Court appointed

counsel to represent Defendant in an attempt to effectively and

efficiently resolve this issue. On July 17, 2008, Defendant’s

counsel filed the instant motion, arguing that Palm’s sentence

should be reduced. On July 28, 2008, the Government filed a

response in opposition to the requested lower sentence. 

At the time of his sentencing, Defendant’s base offense level

was 38 and his criminal history category was IV. The original

sentencing guideline range was 292 to 365 months, and the Court

sentenced Defendant to 188 months after granting a motion for

downward departure for the Government. 

DISCUSSION

When the Court originally sentenced Defendant in 2003, the

Sentencing Guidelines set distribution of 1.5 kilograms of crack

cocaine as the threshold for the maximum base offense level of 38.

See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1(c)(1)

(2003). As the result of Amendment 706 to the Sentencing

Guidelines, a quantity of 4.5 kilograms of crack is now the

threshold for the maximum base offense level of 38. U.S.S.G. §

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1On December 11, 2007, the Commission added Amendment 706 to

the list of amendments stated in Section 1B1.10(c) which may be

applied retroactively, effective March 3, 2008. U.S.S.G. App. C,

Amend. 713.

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2D1.1(c)(1)(2007).1 

The Government argues that Amendment 706 has no retroactive

impact in this case because, even as amended, § 2D1.1(c)(1) still

results in Palm being assigned the maximum base offense level of

38. This is because the quantity of crack cocaine attributed to

Palm at the time he was sentenced exceeded 4.5 kilograms. The

presentence investigation report (“PSR”) prepared for Palm’s

sentencing found that Palm was responsible for 21.36 kilograms of

crack. (PSR ¶¶ 12, 13.) Defendant concedes that he did not object

to the 21.36 kilograms of crack cocaine attributed to him, and

during his sentencing, the Court made the following finding:

“[t]here being no objections to the factual statements contained in

the presentence investigation report, the court adopts those

statements as its findings of fact.” (Feb. 20, 2003 Sentencing

Tr., p. 6.) 

Although Palm concedes that he “would not qualify for a

reduction if, in fact, a determination was made that he dealt 4.5

kilograms or greater” (Def.’s Mot. ¶ 4), Defendant presents several

arguments as to why he should not be held responsible for 21.36

kilograms of crack. First, he argues that at the time of his

sentencing, there was no reason to object to the amount because any

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number over 1.5 kilograms triggered the maximum base offense level

of 38. (Def.’s Mot., ¶ 6.) However, this same argument was

recently addressed and rejected by the Hon. Judge James T. Moody:

Regardless of [defendant’s] lack of incentive to

contest the quantity issue at the time he was

sentenced, a chance to “take back” a fact that

[defendant] has already admitted is unwarranted.

The fact remains that, based on a written statement

[defendant] signed outlining his drug-dealing

activities, the probation officer calculated that

he was responsible for at least 59.93 kilograms of

crack cocaine, and the court adopted that quantity

as its factual finding. There is simply no reason

to revisit now the factual findings that have

already been made in this case. U.S.S.G. §

1B1.10(a)(3) states that “consistent with

subsection (b), proceedings under 18 U.S.C. §

3582(c)(2) and this policy statement do not

constitute a full resentencing of the defendant.

United States v. Eddie Nalls, slip op., 2:00-cr-105 (July 2, 2008).

This Court agrees that there is no reason to revisit the factual

findings previously made in this case. Defendant implies that the

Court did not actually find that Palm was responsible for 21.36

kilograms of crack because it did not “specifically reference 21.

36 kilograms of crack cocaine.” (Def.’s Mot., ¶ 6.) However, this

quantity was reported in the PSR, and this Court adopted all the

statements of fact in the PSR as the Court’s findings of fact.

(Feb. 20, 2003 Sent. Tr., p. 6.) Palm also faults the information

contained in the PSR, claiming it may have been improperly obtained

from him during plea negotiations, and contending that some of the

information does not contain a source. According to the PSR, the

information was provided by Eddie Nalls, a cooperating defendant.

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(PSR, ¶¶ 11-13.) If Palm wished to contest the accuracy of the

information or source, he should have objected at the time of the

PSR. No such objection was made. (PSR, pp. 14-17.)

As provided by the Government, there is ample case law to

support the premise that if the court previously made a finding of

more than 4.5 kilograms of crack, or the court adopted findings of

the PSR which included that fact, or the defendant admitted this

fact in a change of plea hearing, the court in the section 3582(c)

proceeding may rely on the higher quantity and reaffirm the

application of offense level 38. See, e.g., United States v.

Woodson, No. 08-2022, slip op. at 1, 2008 WL 2369636 (8th Cir. June

12, 2008) (ruling where sentence was based on finding that

defendant’s relevant conduct involved more than 4.5 kilograms of

crack, defendant’s “offense level would not change, his guideline

range would not be lowered, and his original sentence is unaffected

by the amendments”); United States v. Hubbard, No. 6:92-cr-35-ORL19DAB, 2008 WL 977344, at *2 (M.D. Fla. Apr. 9, 2008) (denying

motion for reduction in sentence where offense involved more than

4.5 kilograms of crack); United States v. Degeorge, No. 4:01-cr59-

SPM, 2008 WL 2359903 (N.D. Fla. June 5, 2008) (denying motion to

reduce sentence); United States v. King, No. CR01-2003-LLR, 2008 WL

2036894, at *1 (N.D. Iowa May 8, 2008) (finding “the court is

unable to rely on Amendment 706 to reduce the defendant’s sentence

. . . [b]ecause the sentence was based on a quantity of crack that

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2 Title 18 U.S.C. § 3582(c)(2) permits the reduction of a

defendant’s sentence when he was “sentenced to a term of

imprisonment based on a sentencing range that has subsequently

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exceeded 4.5 kilograms.”); United States v. Quary, No. 95-40083-08-

SAC, 2008 WL 1766951, at *2 (D. Kan. Apr. 15, 2008) (denying motion

to reduce sentence because application of Amendment 706 did not

lower defendant’s applicable guideline range due to drug amount);

United States v. Milton, No. 8:96CR46, slip op., 2008 WL 961853 (D.

Neb. Apr. 9, 2008); United States v. Grant, No. 02-cr-022-02-JD,

slip op., 2008 WL 906409 (D.N.H. Apr. 3, 2008) (denying reduction

in base offense because the offense involved more than 4.5

kilograms of cocaine base); United States v. Herrera, No. CR-92-

209-D, 2008 WL 410074 (W.D. Okla. Feb. 12, 2008); United States v.

Wright, No. 93-386-5, 2008 WL 2265272 (E.D. Pa. June 3, 2008);

United States v. Stevens, No. 7:90-cr-00310, slip op., 2008 WL

2330225 (D.S.C. June 3, 2008) (denying motion to reduce sentence

where amended guidelines range was the same because the amount of

crack involved); United States v. Crenshaw, No. 3:96CR000047, slip

op., 2008 WL 2227564 (W.D. Va. May 29, 2008) (holding “[b]ecause

the recommended guideline range has not changed [due to the drug

quantity], this court lacks the authority to reduce the defendant’s

sentence.”).

Courts also agree that, as in this case, where application of

the amendment in question does not result in a different sentencing

range, the sentence may not be reduced.2

 See, e.g., United States

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been lowered by the Sentencing Commission.” 18 U.S.C. § 3582. 

However, U.S.S.G. § 1B1.10(a)(2)(B) provides that “[a] reduction

in the defendant’s term of imprisonment is not consistent with

this policy statement and therefore is not authorized under 18

U.S.C. § 3582(c)(2) if . . . an amendment listed in subsection

(c) does not have the effect of lowering the defendant’s

applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

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v. McFadden, 523 F.3d 839, 840-41 (8th Cir. 2008) (rejecting motion

to reduce under crack amendment); United States v. Bruce, No.

3:94cr00061-gmw-1, slip op., 2008 WL 678643, at *1 (W.D. Va. Mar.

11, 2008) (ruling the offense level should not be reduced because

the amount exceeded 4.5 kilograms). Because this Court found that

the offense committed by Palm involved more than 4.5 kilograms,

there is no basis for a reduction of sentence in this case. Palm

would have received a base offense level of 38 even under the

amended guidelines. Therefore, Defendant does not benefit from the

amendment. Had this Court calculated Defendant’s base offense

level using the November 1, 2007 U.S.S.G. §2D1.1(c) crack

amendment, this Court still would have imposed a term of

imprisonment of 188 months.

CONCLUSION

For the reasons set forth above, the Motion for Retroactive

Application of Sentencing Guidelines to Crack Cocaine Offense,

filed by Defendant, Dante Palm, on July 17, 2008, is DENIED.

DATED: August 5, 2008 /s/ RUDY LOZANO, Judge

United States District Court 

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