UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

V .

Robert Russell

Case No . 05-cr-257-01-JD

O R D E R

Defendant submitted a letter request, which the Court

construed as a motion 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 . Th e

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 December 8,

2006, the above-named defendant pled guilty to a three count

indictment charging him with two counts of Distribution of

Cocaine Base and one count 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 in

conjunction with the emergency amendments effective May 1, 2007)

determined the defendant was responsible for .57 grams of cocaine

base and 1 .19 grams of powder cocaine which, after converting the

drugs to their marijuana equivalent, resulted in a base offense

level of 16 . After applying a three level reduction fo r

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acceptance of responsibility, the defendant's adjusted offense

level was determined to be 13 . However, the defendant was

determined to be a career offender, which increased his base

offense level to 32 and his total offense level, after applying a

three level reduction for acceptance of responsibility, to 29 .

The defendant's criminal history category was determined to be VI

and his advisory guideline range to be 151 to 188 months .

At the sentencing hearing, the Court determined the total

offense level to be 29, the criminal history category to be VI,

and the advisory guideline range to be 151 to 188 months . The

Court concluded, however, that a criminal history category VI and

a total offense level of 29 substantially over represented the

seriousness of the defendant's criminal history . As a result,

the Court departed downward one criminal history category from

criminal history category VI to V and, within that category,

departed downward 4 levels from offense level 29 to 25 . The

Court sentenced the defendant to 84 months imprisonment with a

recommendation for the Bureau of Prisons drug treatment program

and 3 years of supervised release .

On February 25, 2009, the defendant filed a pro se motion

requesting a sentence reduction, pursuant to 18 U .S .C . §

3582(c)(2), due to the recent reduction in the crack cocaine

guideline . The amended guideline range is determined b y

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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 16 to

level 14 . There is no reduction in his total offense level,

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

result, pursuant to USSG §lBl .1O(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 . 43) is DENIED .

SO ORDERED .

Date : March 12, 2009 /s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

cc : Robert Russell, pro se

Counsel of Record

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