UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

V .

Charles Murphy

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

O R D E R

Defendant moves, for the second time, to reduce his sentence

based upon the recent amendments to the Federal Sentencing

Guidelines regarding cocaine base ("crack cocaine") offenses

(document no . 113) . For the reasons stated below, the motion to

reduce sentence is DENIED .

On May 21, 2007, the defendant moved for a sentence

reduction based on the crack cocaine amendments (doc . no . 94) .

By order dated June 11, 2008 (doc . no . 96), the court denied that

request . Specifically, the court determined that the defendant

was not entitled to a sentence reduction due to his career

offender status . The defendant neither moved for reconsideration

nor appealed that decision .

In his second motion, the defendant acknowledges that he was

classified as a career offender . He argues, however, that his

sentence was based on the drug quantity table because the court

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used that guideline in a series of calculations leading up to the

sentencing range ultimate applied to his sentence . Citing United

States v . Poindexter , 550 F . Supp . 2d 578 (E .D . Pa . 2008), the

defendant maintains he is entitled to a sentence reduction . The

defendant's position, however, is contrary to both fact and law .

As stated in the original order (doc . no . 96) ,

[t]he 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 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 .

Thus, contrary to the defendant's factual assertion and

contrary to the facts presented in Poindexter , the court did not

depart from the career offender base offense level (32) in order

to sentence the defendant on the base offense level from the dru g

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quantity table (22) . Most significantly, the exact argument

advanced by the defendant here was rejected as a matter of law by

the First Circuit in United States v . Caraballo , 552 F .3d . 6, 9

(1st Cir . 2008) :

Refined to bare essence, the defendant's

suggestion is that, even though his sentence was not

dictated exclusively by the crack cocaine guideline, it

was "based on" that guideline because that guideline

was a way station along the road that the district

court traveled in arriving at the appropriate

sentencing range . He insists that, given this

imbrication, Amendment 706 unlocks section 3582(c)(2)

and authorizes the district court, on his motion, to

recalculate his sentencing range and determine anew, in

light of generally applicable sentencing factors, see 8

U .S .C . § 3553(a), whether a sentence reduction is

warranted .

We are not persuaded .

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

reduce sentence (document no . 113) is DENIED .

SO ORDERED .

Date : March 6, 2009 /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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