UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. _06-cr-159-01-SM

Charmine Preston

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. 22). 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 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, 2006 edition of the

Guideline Manual with the May 1, 2007 Supplement) determined the

defendant was responsible for 20.26 grams of cocaine base, which

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

level reduction for acceptance of responsibility, the defendant’s

total offense level was determined to be 25. The defendant’s

criminal history category was determined to be I and her advisory

guideline range to be 57 to 71 months. Pursuant to USSG

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1 Defendant’s factual recitation contains errors that

result in an erroneous calculation of the original guideline

imprisonment range. First, defendant states there was a two

level reduction pursuant to USSG §2D1.1(b)(11), claiming she met

the criteria for a safety valve reduction in §5C1.2. At the

sentencing hearing, however, the defendant had not satisfied the

fifth prong of §5C1.2 and, thus, was not eligible for a safety

valve reduction. Second, defendant asserts that she pled guilty

to the distribution of just 15.19 grams of cocaine base, rather

than the total of 20.26 grams of cocaine base listed in the

original presentence report and found by the court at the

original sentencing hearing. That difference results in a two

level difference in the drug weight between defendant’s

calculations and the court’s findings at sentencing.

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§5G1.1(c)(2), the guideline imprisonment range became 60 to 71

months because Count II had a five year minimum mandatory

penalty.1

At the sentencing hearing the court adopted the presentence

report without objection by counsel and sentenced the defendant

to 60 months imprisonment with a recommendation for the Bureau of

Prisons drug treatment program and 4 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

reduction in her base offense level from level 28 to level 26 and

her total offense level is reduced from level 25 to level 23. 

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While a total offense level 23 and a criminal history category I

has a guideline imprisonment range of 46 to 57 months, Count

II had a five year minimum mandatory penalty. Pursuant to USSG

§5G1.1(b), in those cases in which a statutorily required minimum

sentence is greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall be the

guideline sentence. As a result, the statutory mandatory minimum

penalty controls the sentencing in this case because there was no

government USSG §5K1.1 motion, nor was the defendant deemed

eligible for the safety valve reduction. Pursuant to USSG

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

lowering the defendant’s applicable guideline range.

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

reduce sentence (document no. 22) is DENIED.

SO ORDERED.

Date: April 25, 2008 ____________________________________

Steven J. McAuliffe

United States District Judge

cc: Charmine Preston, pro se

Counsel of Record

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