UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number 08-20520

v. Honorable David M. Lawson

BILLY SMITH,

Defendant.

_____________________________________ /

ORDER DENYING DEFENDANT’S MOTION FOR REDUCTION OF SENTENCE

The matter is before the Court on the defendant’s motions for reduction in sentence. On

February 17, 2009, the defendant, Billy Smith, pleaded guilty to one count of conspiracy to

distribute and possess with intent to distribute 50 grams or more of cocaine base, one count of

conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, and

one count of conspiracy to unlawfully use a communication facility to commit a drug trafficking

offense. On June 25, 2009, the defendant was sentenced to 96 months imprisonment on the first

two counts and 48 months on the third, to be served concurrently. The defendant also was sentenced

to five years supervised release. The guideline range calculated at the time of sentencing was based

on a total offense level of 35 (base offense level 38 minus three for acceptance of responsibility) and

criminal history category of IV, resulting in a guideline range of 210 to 262 months. 

Now before the Court is the defendant’s motion to reduce his sentence under 18 U.S.C.

§ 3582(c). The defendant argues that he is entitled to have his sentence reduced because the United

States Sentencing Commission, following the enactment of the Fair Sentencing Act of 2010, issued

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new and more lenient sentencing guidelines applicable to offenses involving crack cocaine. Those

guidelines were made retroactive by the Sentencing Commission as of November 1, 2011.

Under 18 U.S.C. § 3582(c)(2), a court may modify a term of imprisonment after it is imposed

only under certain conditions:

[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.

Section 1B1.10(a)(2) of the Sentencing Guidelines provides that a defendant is not eligible for a

sentence reduction if the amendment to the Sentencing Guidelines — in this case, Amendment 750,

which was made retroactive by Amendment 759 — “does not have the effect of lowering the

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

The quantity of drugs used to calculate the defendant’s original base offense level was

7,756,800 kilograms of marijuana equivalency, which was calculated by totaling 384 kilograms of

cocaine (76,800 kilograms of marijuana equivalency) and 384 kilograms of cocaine base (7,688,000

kilograms of marijuana equivalency). Based on the Fair Sentencing Act and Crack Retroactivity

Amendment, the defendant’s new base offense level would be based on 1,448,064 kilograms of

marijuana equivalency — 76,800 kilograms of marijuana equivalency for the cocaine and 1,371,264

kilograms of marijuana equivalency for the cocaine base. See U.S.S.G. § 2D1.1 app. n.10(D). The

defendant’s base offense level would remain unchanged at 38 because his drug quantity was more

than 30,000 kilograms of marijuana equivalency. U.S.S.G. § 2D1.1(c)(1). After applying the threelevel reduction for acceptance of responsibility, the defendant’s new total offense level remains at

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a 35, making him ineligible for a reduction in sentence under 18 U.S.C. § 3582(c)(2). See United

States v. Snipes, 385 F. App’x 483, 486 (6th Cir. 2010) (holding that defendant was not eligible for

sentence reduction where the applicable guideline range after considering the effect of the

amendment to the Sentencing Guidelines was identical to the original guideline range under which

the defendant was sentenced).

Accordingly, it is ORDERED that the defendant’s motion for reduction of sentence [dkt.

#406] is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: May 18, 2012

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on May 18, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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