UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 04-cr-091-01-SM

William Silva

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. 43). 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. Based on his

career offender status, his adjusted offense level was 32, which

was reduced three levels for acceptance of responsibility and,

after granting a joint motion for a non-guideline sentence, the

defendant received the following sentence: 120 months

imprisonment with a recommendation for the Bureau of Prisons drug

treatment program and 5 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

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unaffected. Applying the retroactive application of the crack

cocaine amendment to this sentence, the defendant receives a two

level reduction in his base offense level from level 32 to level

30, but there is no reduction in his total offense level because

he was deemed to be a career offender. Therefore, pursuant to

USSG §1B1.10(a)(2)(B), the retroactive amendment does not have

the effect of lowering the defendant’s guideline range. 

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

reduce sentence (document no. 43) is DENIED.

SO ORDERED.

Date: April 3, 2008 ____________________________________

Steven J. McAuliffe

United States District Judge

cc: William Silva, pro se

Counsel of Record

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