UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 08-cr-048-01-JD

 

Lorraine Rehm

O R D E R

The defendant, Lorraine Rehm, moved for court appointed

counsel to assist her 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. 55). That amendment was

given retroactive effect on November 1, 2011. For the reasons

stated below, the defendant's motion to appoint counsel is

DENIED.

On August 3, 2010, Congress enacted the 2010 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 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

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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

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 she is presently

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incarcerated, the defendant is not eligible to seek a reduced

sentence under this amendment.

On April 20, 2009, the defendant pled guilty to two (2)

counts of Distribution of Cocaine Base in violation of 21 U.S.C.

§ 841(a)(1). Based on the offenses and quantities of drugs

involved and after various adjustments to the base offense level,

the defendant's total offense level was 27 and her advisory

guideline range was 78 to 97 months. Because the defendant was

subject to a statutory minimum mandatory ten (10) year penalty on

the second count, however, the statutory guideline range became

120 months pursuant to USSG § 5G1.1(b). The defendant entered

into a binding stipulation with the government to receive a 120

month sentence on each count (with all terms to be served

concurrently), which was accepted by the court at sentencing on

January 29, 2010.

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

reduction based on the retroactive application of the crack

cocaine amendment. In short, if the defendant was not subject to

the statutory minimum mandatory ten (10) year sentence, the

application of the crack cocaine base amendment in this case

would have reduced her total offense level from 27 to 23 and her

advisory guideline range to 51 to 63 months. In this case,

however, the defendant was sentenced pursuant to the statutory

minimum mandatory ten (10) year penalty provision. The policy

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statement governing retroactive application of the guideline

amendment, USSG § 1B1.10, does not authorize a reduction in

statutory minimum penalties. As a result, because the

retroactive crack base guideline amendment has no application to

the statutory provision for which the defendant was sentenced,

the amendment has no impact on her sentence. 

Therefore, because the defendant received a minimum

mandatory sentence, she is not eligible for a further reduction

of her sentence based upon the crack cocaine base amendment. As

a result, it would be futile, and an unnecessary expenditure of

taxpayer monies, to appoint counsel to pursue a sentence

reduction on her behalf. Defendant's motion to appoint counsel

(document no. 55) is DENIED.

SO ORDERED.

Date: September 4, 2012 /s/ Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

United States District Judge

cc: Lorraine Rehm, pro se

Counsel of Record

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