UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 06-cr-165-01-PB

 

Anthony Frith

O R D E R

The defendant, Anthony Frith, moved for court appointed

counsel to assist him in the pursuit of 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. 48). The defendant

subsequently filed a pro se motion for a sentence reduction based

on the amendment to the 2010 Fair Sentencing Act (document no.

49). That amendment was given retroactive effect on November 1,

2011. For the reasons stated below, both the motion to appoint

counsel and to reduce sentence are DENIED. 

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

to restore fairness to crack cocaine sentences. Specifically,

the 2010 Fair Sentencing Act increased the threshold quantity of

crack cocaine for certain base offense levels listed in the Drug

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

sentence for simple possession of crack cocaine, and 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

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

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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. 

After having reviewed the offense for which the defendant

was convicted in this district and upon which he is presently

incarcerated, the defendant is not eligible to seek a reduced

sentence under this amendment.

On August 20, 2007, the defendant pled guilty to one (1)

count of Distribution of Cocaine, in violation of 21 U.S.C. § 841

(a), and three (3) counts of Distribution of Cocaine Base, in

violation of 21 U.S.C. § 841(a). The government agreed to

dismiss Count II, Distribution of Cocaine and Count VI,

Possession of a Firearm in Furtherance of Drug Trafficking. In

addition, the plea agreement contained a non-binding stipulation

that neither side would seek a departure.

Based on the offenses and quantities of drugs involved, and

after applying a two level increase for possession of a dangerous

weapon and a three level reduction for acceptance of

responsibility, the total offense level was 25 and the advisory

guideline range was 84 to 105 months. At sentencing, the court

gave a one level criminal history departure and sentenced the

defendant to 70 months imprisonment. 

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

reduction based on the retroactive application of the crack

cocaine amendment. Applying the amendment in this case, the

defendant receives a two level reduction in his base offense

level, from level 26 to level 24, thereby reducing his total

offense level from 25 to 23. As a result, his amended guideline

range becomes 70 to 87 months. 

The defendant originally received a sentence of 70 months, 

which is at the lowest end of the new range based on the

retroactive application of the crack cocaine amendment. Pursuant

to USSG §1B1.10(b)(2)(A), "the court sha1l not reduce the

defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and

this policy statement to a term that is less than the minimum of

the amended guideline range" as determined under the permanent

guideline amendment. The only exception to this provision

involves a defendant who received a lower sentence based on

having provided substantial assistance to the government, which

is not applicable here. Thus, no further reduction in the

defendant's sentence is warranted. 

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For the foregoing reasons, the defendant's request for the

appointment of counsel (document no. 48) and motion to reduce

sentence (document no. 49) are DENIED.

SO ORDERED.

Date: December 13, 2011 __________________________________

Paul J. Barbadoro

United States District Judge

cc: Anthony Frith, pro se

Counsel of Record

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