UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case No. 08-20498 

v. Honorable Thomas L. Ludington 

 

LERON DAVIS, 

 Defendant. 

______________________________________ / 

ORDER STAYING PROCEEDINGS REGARDING PETITIONER’S MOTION 

FOR RETROACTIVE APPLICATION OF REVISED SENTENCING GUIDELINES

AND SCHEDULING HEARING ON MOTION

 In 2009, Petitioner Leron Davis pled guilty to one count of possession with intent to 

distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). ECF Nos. 17, 18, 20. Pursuant to 

the plea agreement, the parties agreed that law enforcement officers located 19.06 grams of crack 

cocaine in Davis’s pocket at the time of his arrest; laboratory analysis determined the substance 

to be five grams or more of cocaine base. ECF No. 17. Davis was sentenced to seventy months. 

ECF No. 24. 

 The Fair Sentencing Act of 2010, which took effect on August 3, 2010, modified the 

statutory penalties applicable to cocaine base offenses downwards. In April 2011, the Sentencing 

Commission submitted to Congress proposed amendments making some provisions of Fair 

Sentencing Act retroactive, effective November 1, 2011. 

 On August 29, 2011, Davis filed a motion for retroactive application of the revised 

sentencing guidelines. ECF No. 25. At the Court’s request, the government responded to the 

motion. ECF No. 28. In its brief, the government contends that the motion is premature as the 

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amendment does not become effective until November 1, 2011, and only then if not disapproved 

by Congress. 

“A judgment of conviction that includes a sentence of imprisonment constitutes a final 

judgment and may not be modified by a district court except in limited circumstances.” Dillon v. 

United States, 130 S. Ct. 2683, 2690 (2010) (internal quotation marks and alterations omitted) 

(quoting 18 U.S.C. § 3582(b)). One such circumstance is set forth in § 3582(c)(2), which 

“establishes an exception to the general rule of finality 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) and made retroactive 

pursuant to § 994(u),” but only “if such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.” Dillon, 130 S. Ct. at 2690 (internal quotation 

marks omitted) (quoting 18 U.S.C. § 3582(c)(2)). “A court’s power under § 3582(c)(2) thus 

depends in the first instance on the Commission’s decision not just to amend the Guidelines but 

to make the amendment retroactive.” Dillon, 130 S. Ct. at 2691. The Sentencing Commission’s 

decision that its proposed amendment will not take effect until November 1, 2011, is thus 

binding on this Court. 

 Accordingly, it is ORDERED that the motion to stay the consideration of Petitioner’s 

motion for retroactive application of the revised sentencing guidelines [Dkt. # 28] is 

GRANTED, and that a hearing on defendant’s motion for retroactive application of sentencing 

guidelines [Dkt. # 25] is SCHEDULED for December 13, 2011 at 2:30 p.m.

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: September 23, 2011 

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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 September 23, 2011. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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