UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number 08-20520

v. Honorable David M. Lawson

ROBERT EVANS,

Defendant.

______________________________________ /

ORDER DENYING MOTION FOR REDUCTION OF SENTENCE

On March 11, 2009, defendant Robert Evans pleaded guilty to conspiracy to distribute and

to possess with intent to distribute cocaine, conspiracy to distribute and to possess with intent to

distribute cocaine base, and conspiracy to unlawfully use a communications facility to commit a

drug trafficking offense. The conspiracy to distribute counts carried a statutory minimum sentence

of ten years. However, on September 9, 2009, the Court sentenced Mr. Evans to 70 months

imprisonment on the drug counts and 48 months imprisonment on the use of a communications

facility conviction, with the sentences to be served concurrently. The Court imposed a sentence

below the statutory minimum based on Mr. Evans’s substantial assistance. See 18 U.S.C. § 3553(e).

The Court also sentenced Mr. Evans to 60 months supervised release on the drug counts and 36

months supervised release on the use of a communications facility conviction, with the terms to be

served concurrently.

Now before the Court is Mr. Evans’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.

(emphasis added). Mr. Evans alleges that because the Sentencing Commission has reduced the

crack cocaine guidelines and made them retroactive, and his crime involved the distribution of crack

cocaine, he is entitled to a sentence reduction. 

The United State Court of Appeals for the Sixth Circuit has held that a defendant who is

subject to a statutory minimum sentence but whose sentence departs from the statutory minimum

based on his substantial assistance is not eligible for a reduction under section 3582(c)(2). United

States v. Johnson, 564 F.3d 419, 423 (6th Cir. 2009). The court reasoned that the starting point for

such a sentence is not U.S.S.G. § 2D1.1(c) — the drug quantity table modified in that case by

Amendment 706 — but the mandatory minimum sentence itself. Therefore, the guideline

amendment did not lower the guideline range upon which the defendant’s sentence was based. Ibid.

The Sixth Circuit also has held that, even if the district court’s departure analysis began at the base

offense level applicable under U.S.S.G. § 2D1.1, such a defendant is not entitled to a sentence

reduction under section 3582(c)(2) because the reduction would be inconsistent with the Sentencing

Commission’s policy statements. United States v. Hameed, 614 F.3d 259, 268-69 (6th Cir. 2010).

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The Court believes that Mr. Evans’s motion is governed by the precedent set forth in

Johnson and Hameed. Because Mr. Evans’s sentence was based on the statutory mandatory

minimum and not a sentencing guideline range that was later lowered by the Sentencing

Commission, he is not eligible for relief. 

Accordingly, it is ORDERED that the defendant’s motion for reduction of sentence under

18 U.S.C. § 3582(c) [dkt. #403] is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: February 8, 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 February 8, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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