UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

V .

Christopher Madison

Case No . 05-cr-205-01-JD

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 . 15) . 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 . The defendant pled

guilty to to a one count Indictment charging him with Possession

with Intent to Distribute Cocaine Base, in violation of 2 1

U .S .C . § 841(a)(1) . The presentence report (using the November

1, 2004 edition of the Guidelines Manual) determined the

defendant was responsible for 317 .4 grams of cocaine base, which

resulted in a base offense level of 34 . After applying a three

level reduction for acceptance of responsibility, the defendant's

total offense level was determined to be 31 . The defendant's

criminal history was determined to be I and his advisory

guideline range to be 108 to 135 months . However, because the

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minimum mandatory statutory penalty in this case was ten years

pursuant to USSG §5G1 .1(c)(2), the defendant's guideline range

became 120 to 135 months .

At the sentencing hearing the court adopted the facts and

findings in the presentence report without objection from

counsel . The Court sentenced the defendant to 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

unaffected . After applying the retroactive application of the

crack cocaine amendment, the defendant receives a two level

reduction in his base offense level from level 34 to level 32 and

his total offense level is reduced from level 31 to level 29 .

While the defendant's resulting advisory guideline range would

become 87 to 108 months, pursuant to USSG §5G1 .1(c)(2) the

guideline range becomes 120 months because of the ten year

minimum mandatory penalty in this case . Pursuant to USSG

§ 5G1 .1(b), in those cases in which a statutorily required minimum

sentence is greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall be th e

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guideline sentence . As a result, the statutory mandatory minimum

penalty controls the sentencing in this case because there was no

government USSG §5K1 .1 motion, nor was the defendant deeme d

eligible for the safety valve reduction . Pursuant to USSG

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

lowering the defendant's applicable guideline range .

Therefore, for the foregoing reasons, defendant's motion to

reduce sentence (document no . 15) is DENIED .

SO ORDERED .

Date : April 28, 2008 /s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

cc : Christopher Madison, pro se

Counsel of Record

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