UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 05-cr-177-01-SM

 

Augustin Damian

O R D E R

The defendant, Augustin Damian, moved for a sentence

reduction based upon the cocaine base ("crack cocaine") amendment

to the Federal Sentencing Guidelines implementing the Fair

Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(2010) ("2010 Fair Sentencing Act") (document no. 41). That

amendment was given retroactive effect on November 1, 2011. For

the reasons stated below, the defendant's motion to reduce

sentence is DENIED. 

On August 3, 2010, Congress enacted the 2010 Fair Sentencing

Act to restore fairness to crack cocaine sentences. 

Specifically, the Fair Sentencing Act increased the threshold

quantity of crack cocaine for certain base offense levels listed

in the Drug Quantity Table in §2D1.1, eliminated the mandatory

minimum sentence for simple possession of crack cocaine, and

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directed the United States Sentencing Commission ("Commission")

to review and amend the sentencing guidelines to account for

specified aggravating and mitigating circumstances in certain

drug cases.

Pursuant to the directive in the 2010 Fair Sentencing Act,

the Commission promulgated a temporary, emergency amendment

implementing the Act effective November 1, 2010. See United

States Sentencing Commission, Supplement to the 2010 Guidelines

Manual (Nov. 1, 2010). On April 6, 2011, the Commission repromulgated as permanent the temporary, emergency amendment and,

pursuant to 28 U.S.C. §994(p), submitted Amendment 750 for

congressional review on April 28, 2011.

On June 30, 2011, the Commission voted to add Parts A and C

of Amendment 750 to §1B1.10(c), which identifies those amendments

to the Federal Sentencing Guidelines that may be considered for

retroactive application pursuant to 28 U.S.C. §994(u). Part A

amended the Drug Quantity Table in §2D1.1 for crack cocaine

offenses and made related revisions to Application Note 10 to

§2D1.1. Part C deleted the cross reference in §2D2.1(b) under

which an offender who possessed more than five (5) grams of crack

cocaine was sentenced under §2D1.1. On November 1, 2011, the

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amendment to §1B1.10 took effect, at which time reductions in

sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the

retroactive application of Parts A and C of Amendment 750 were

authorized. 

Having reviewed the offense of conviction, the sentence

imposed, and the pertinent record, it is clear that the defendant

is not eligible to seek a reduced sentence under the

retroactively applicable amendment.

On May 13, 2006, the defendant pled guilty to an eight (8)

count Indictment charging him with six (6) counts of Distribution

of Cocaine Base ("Crack") and two counts of Distribution of

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

sentencing, the defendant was deemed to be a career offender and,

as a result, his total offense level was twenty-nine (29) and the

advisory guideline range was 151 to 188 months. After receiving

a six (6) level downward departure for substantial assistance,

which lowered the imprisonment range to 92 to 115 months, the

court imposed a sentence of 92 months imprisonment and three (3)

years of supervised release on each count, to be served

concurrently. 

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On this record, the defendant is plainly not entitled to a

sentence reduction based on a retroactive application of the 2010

Fair Sentencing Act amendment (Amendments 750, Parts A and C). 

Under the 2010 Fair Sentencing Act the statutory career offender

guideline still sets the applicable Guideline Sentencing Range in

the defendant’s case. The retroactive guideline amendment did

not lower that range — it was 151 to 188 months when defendant

was sentenced and it remains at 151 to 188 months now (because

the Fair Sentencing Act’s provisions are not retroactive). See,

e.g., United States v. Curet, ___ F.3d ___, 2012 WL 75392 (1st

Cir. January 11, 2012). Because the defendant was sentenced

pursuant to the career offender guideline, and the retroactive

crack base guideline amendment has no application to the

statutory provision for which he was sentenced, the amendment has

no impact on his sentence. 

The retroactive amendment, by its terms, does not apply to

defendant. Because “the guideline range applicable to . . .

defendant” has not been “lowered as a result of an amendment to

the Guidelines Manual listed in subsection (c),” U.S.S.G. §

1B1.10(a)(1), defendant is not entitled to sentence relief. See

also U.S.S.G. § 1B1.10(a)(2)(B). Application Note 1(A) to

Section 1B1.10 confirms that conclusion: “Accordingly, a

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reduction in the defendant’s term of imprisonment is not

authorized . . . [if the retroactive amendment] does not have the

effect of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory

provision (e.g., a statutory mandatory minimum term of

imprisonment).” 

Because the career offender guideline was not lowered by the

2010 Fair Sentencing Act cocaine base amendment, the defendant is

not eligible for a reduction of his sentence. Therefore, the

defendant's motion to for a sentence reduction (doc. no. 41) is

DENIED.

SO ORDERED.

Date: March 12, 2012 __________________________________

Steven J. McAuliffe

United States District Judge

cc: Augustin Damian, pro se

Counsel of Record

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