UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 05-cr-251-01-JD

Charles Murphy

O R D E R

Defendant moves to reduce his sentence based upon the recent

amendments to the Federal Sentencing Guidelines regarding cocaine

base ("crack cocaine") offenses (document no. 94). For the

reasons stated below, the motion to reduce sentence is DENIED.

On May 1, 2007, the United States Sentencing Commission (the

"Commission") submitted to Congress an amendment to the Federal

Sentencing Guidelines that lowers the guideline sentencing range

for certain categories of offenses involving crack cocaine. 

Specifically, the amendment adjusts downward by two levels the

base offense level assigned to each threshold quantity of crack

cocaine listed in the Drug Quantity Table in §2D1.1 and provides

a mechanism for determining the guideline range for offenses

involving crack cocaine and other controlled substances. This

amendment took effect November 1, 2007.

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Pursuant to 28 U.S.C. § 994(u), the Commission also

determined that this guideline amendment would be applied

retroactively to offenders who were sentenced under prior

versions of the Guidelines Manual and who are incarcerated. The

Commission set the effective date for the retroactive application

of this amendment to be March 3, 2008, at which time reductions

in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the

retroactive application of the crack cocaine amendment will be

authorized.

After having reviewed the offense for which the defendant

was convicted in this district and upon which he is presently

incarcerated, it is determined that defendant is not eligible to

seek a reduced sentence under this amendment. On January 11,

2007, the above-named defendant pled guilty to an eight count

indictment charging him with Conspiracy to Distribute Cocaine and

Cocaine Base, in violation of 21 U.S.C. §§ 846 and 841(a)(1); two

counts of Distribution of Cocaine Base, in violation of 21

U.S.C. § 841(a)(1); and five counts of Distribution of Cocaine,

in violation of 21 U.S.C. § 841(a)(1). The presentence report

(using the November 1, 2006 edition of the Guidelines Manual)

determined the defendant was responsible for 2.51 grams of

cocaine base (or the equivalent of 50.2 kilograms of marijuana)

and 57.42 grams of cocaine (or the equivalent of 11.48 kilograms

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of marijuana), which resulted in a base offense level of 22.

Because the defendant was determined to be a career offender, his

base offense level was increased to level 32 pursuant to USSG

§4B1.1. After applying a three level reduction for acceptance of

responsibility, the defendant’s total offense level was

determined to be 29. The defendant’s criminal history was

determined to be VI and his advisory guideline range to be 151 to

188 months.

At the sentencing hearing, the court adopted the facts and

findings in the presentence report (with one minor exception that

had no impact on the sentencing range). After granting a

request for a four level departure, the court sentenced the

defendant to 110 months imprisonment with a recommendation for

the Bureau of Prisons drug treatment program and three years of

supervised release. 

The amended guideline range is determined by substituting

only the retroactive crack cocaine amendment to the guidelines as

applied at the original sentencing and all other guideline

application decisions for the original sentencing remain

unaffected. After applying the retroactive application of the

crack cocaine amendment, the defendant initially receives a two

level reduction in the base offense level from level 22 to level

20. There is no reduction in his total offense level, however,

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because he was deemed to be a career offender. As a result,

pursuant to USSG §1B1.10(a)(2)(B), the retroactive amendment does

not have the effect of lowering the defendant’s imprisonment

guideline range.

Therefore, for the foregoing reasons, Defendant’s motion to

reduce sentence (document no. 94) is DENIED.

SO ORDERED.

Date: June 11, 2008 /s/ Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

United States District Judge

cc: Charles Murphy, pro se

Counsel of Record

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