UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 05-cr-174-01-SM

Kelly Guay

O R D E R

Defendant moves to reduce her sentence based upon the recent

amendments to the Federal Sentencing Guidelines regarding cocaine

base ("crack cocaine") offenses (document no. 37). 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.

Case 1:05-cr-00174-SM Document 41 Filed 04/24/08 Page 1 of 4
2

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 she is presently

incarcerated, it is determined that defendant is not eligible to

seek a reduced sentence under this amendment. The defendant pled

guilty to a three count Indictment charging her with Distribution

of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1). The

presentence report (using the November 1, 2005 edition of the

Guidelines Manual with the March 27, 2006 Supplement) determined

the defendant was responsible for 29.89 grams of cocaine base (or

the equivalent of 597.8 kilograms of marijuana) and 27.77 grams

of cocaine powder (or the equivalent of 5.554 kilograms of

marijuana) for a total of 603.354 kilograms of marijuana, which

resulted in a base offense level of 28. After applying a three

level reduction for acceptance of responsibility, the defendant’s

Case 1:05-cr-00174-SM Document 41 Filed 04/24/08 Page 2 of 4
3

total offense level was determined to be 25. Pursuant to USSG

§4B1.1, the defendant was determined to be a career offender and,

as a result, her base offense level was increased to level 32,

which resulted in a total offense level of 29 (after applying a

three level reduction for acceptance of responsibility), her

criminal history was determined to be VI and her advisory

guideline range to be 151 to 188 months.

At the sentencing hearing on August 23, 2006, the court

adopted the presentence report without objection by counsel. The

court did, however, grant the defendant’s motion for a nonguideline sentence and sentenced the defendant to 60 months

imprisonment on each count to run concurrently with a

recommendation for the Bureau of Prisons drug treatment program

and 3 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

Case 1:05-cr-00174-SM Document 41 Filed 04/24/08 Page 3 of 4
1 It is worth noting that the current edition of the

Guidelines Manual would not result in a two level reduction

because of methodology presently used to convert multiple drugs

to their marijuana equivalent. On April 16, 2008, however, the

Sentencing Commission amended the methodology to convert multiple

drugs in crack cocaine cases. Under that amendment, the

defendant would be entitled to a two level reduction. Although

this amendment will not take effect until May 1, 2008, the court

has given the defendant the benefit of its application in this

analysis.

4

reduction in her base offense level from level 28 to level 26.1

However, because the defendant has been deemed to be a career

offender, there is no reduction in her total offense level or her

guideline imprisonment range. 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. 39) is DENIED.

SO ORDERED.

Date: 4/24/08 

 ____________________________________

Steven J. McAuliffe

United States District Judge

cc: Kelly Guay, pro se

Counsel of Record

Case 1:05-cr-00174-SM Document 41 Filed 04/24/08 Page 4 of 4