UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 05-cr-069-01-PB

Michelle Olivieri

O R D E R

Defendant filed two separate motions to reduce her sentence

based upon the recent amendments to the Federal Sentencing

Guidelines regarding cocaine base ("crack cocaine") offenses

(documents no. 35 & 36). She also filed a motion to appoint

counsel to represent her in this matter (document no. 37). For

the reasons stated below, both motions to reduce her sentence and

the motion for appointment of counsel are 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

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involving crack cocaine and other controlled substances. This

amendment took effect November 1, 2007.

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 presentence

report (using the November 1, 2005 edition of the Guidelines

Manual)determined the defendant was responsible for 1.27 grams of

cocaine, which resulted in a base offense level of 18. After

applying a three level reduction for acceptance of

responsibility, the defendant’s total offense level was

determined to be 15. However, pursuant to USSG §4B1.1 the

defendant was determined to be a career offender. Therefore, her

offense level was increased to level 32, which was reduced by

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three levels for acceptance of responsibility, resulting in a

offense level of 29. At the sentencing hearing the court adopted

the facts and findings contained in the presentence report and,

after granting defendant’s motion for both a downward departure

and non-guideline sentence, the defendant was sentenced to 90

months imprisonment with a recommendation for the Bureau of

Prisons drug treatment program and three 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. Applying the retroactive application of the crack

cocaine amendment, the defendant receives a two level reduction

in her initial base offense level from level 18 to level 16.

There is no reduction in her total offense level, however,

because she was deemed to be a career offender. As a result,

pursuant to USSG §1B1.10(a)(2)(B), the retroactive amendment

does not have the effect of lowering the defendant’s guideline

range.

Therefore, for the foregoing reasons, Defendant’s motions to

reduce her sentence (document no. 35 & 36) are DENIED. Because

the court believes the appointment of counsel would have no

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impact on the legal issues presented or the legal analysis in

this case, the motion to appoint counsel (document no. 37) is

also DENIED.

SO ORDERED.

Date: April 3, 2008 /s/ Paul J. Barbadoro 

Paul J. Barbadoro

United States District Judge

cc: Michelle Olivieri, pro se

Counsel of Record

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