UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 07-cr-002-01-PB

Nathaniel Kitchen

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. 25). 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. 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 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 a one count Indictment charging him with Possession

with Intent to Distribute Five Grams or More of Cocaine Base in

violation of 21 U.S.C. § 841(a)(1). The presentence report

(using the November 1, 2006 edition of the Guidelines Manual)

determined the defendant was responsible for 29.52 grams of

cocaine base (or the equivalent of 590.40 kilograms of

marijuana), .11 grams of powder cocaine (or the equivalent of

.022 kilograms of marijuana), and 2.05 grams of marijuana (or the

equivalent of .00205 kilograms of marijuana), which resulted in a

base offense level of 28. The presentence report applied a two

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level increase for the possession of a dangerous weapon, which

resulted in an adjusted offense level of 30. After applying a

three level reduction for acceptance of responsibility, the

defendant’s total offense level was determined to be 27 in the

presentence report. The defendant’s criminal history was

determined to be I and his advisory guideline range to be 70 to

87 months.

At the sentencing hearing, the court adopted the defendant’s

objection to the two level increase for possession of a dangerous

weapon and found the defendant’s adjusted offense level to be 28,

his total offense level to be 25, and his initial advisory

guideline range to be 57 to 71 months. Nonetheless, because the

defendant was subject to a five year mandatory minimum statutory

penalty (21 U.S.C. § 841(b)(1)(B)(iii)), the court determined

that the defendant could not be sentenced below 60 months. Thus,

the defendant was sentenced to 60 months imprisonment followed by

four years supervised release.

After applying the retroactive application of the crack

cocaine amendment to the defendant’s sentence, the defendant’s

base offense level would be reduced from level 28 to level 26 and

his total offense level would be reduced from level 25 to level

23. As a result, if the defendant was not subject to a five year

mandatory minimum sentence, the advisory guideline range would

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become 46 to 57 months. In this case, however, the statutory

mandatory minimum penalty controls because there was no

government USSG §5K1.1 motion and the defendant was not deemed

eligible for the safety valve reduction. Therefore, pursuant to

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

the effect of lowering the defendant’s imprisonment guideline

range.

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

reduce sentence (document no. 25) is DENIED.

SO ORDERED.

Date: /s/ Paul J. Barbadoro 

Paul J. Barbadoro

United States District Judge

cc: Nathaniel Kitchen, pro se

Counsel of Record

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