1 United States v. Booker, 543 U.S. 220 (2005).

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 07-cr-65-2-SM

Opinion No. 2008 DNH 048

Deidre Scheffler

O R D E R

Defendant moves to amend the sentence imposed based, inter

alia, on the United States Sentencing Commission’s retroactive

amendment of the “crack” cocaine guideline (Amendments 706 and

711), effective March 3, 2008.

At sentencing, on July 30, 2007, defendant’s guideline Total

Offense Level (TOL) was properly calculated as 15 and her

Criminal History Category (CHC) as III, which yielded a

recommended term of imprisonment of 24-30 months. The court,

however, imposed a non-guidelines or variant (i.e., Booker1)

sentence of 18 months, taking into account both the sentencing

factors described in 18 U.S.C. § 3553(a), and defense counsel’s

argument that: the offense involved a single sale of a

relatively small amount of “crack” cocaine; defendant was not

acting completely independently, but rather was heavily

influenced by her drug-dealing boyfriend upon whom she depended

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 1 of 6
2

for food and shelter; there was an extended delay of a year and a

half between the offense conduct and defendant’s arrest, during

which she made substantive and effective efforts to address her

drug addiction; defendant suffered from a background of physical

and sexual abuse; she voluntarily elected detention in order to

take advantage of drug treatment programs, and, finally, the

Sentencing Commission had, at that time, recognized the

unrealistic nature of the crack-powder disparity in guideline

sentencing, and had proposed an amendment to address that

anomaly.

Defendant seeks the benefit of the retroactive reduction in

the crack guideline, in the form of a further reduction of her

sentence by 25% — representing a reduction from the low end of

the newly applicable guideline range occasioned by the

retroactive reduction of the crack guideline, that is consistent

with the reduction under Booker, from the low end of the

originally calculated guideline range. That is, the original

calculation should be retroactively reduced from TOL 15/CHC III

(24-30 mos.) to TOL 13/CHC III (18-24 mos.), and the sentence

previously imposed (18 mos.) should likewise be reduced by about

25% — the amount the bottom of the range has been retroactively

lowered (i.e., 6 is 25% of 24).

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 2 of 6
3

The amended policy statement issued by the Commission

relative to reducing sentences to imprisonment as a result of a

retroactively applied amended guideline range, as we have here,

provides, in pertinent part, as follows:

In General. In a case in which a defendant is serving

a term of imprisonment, and the guidelines range

applicable to that defendant has subsequently been

lowered as a result of an amendment to the Guidelines

Manual listed in subsection (c) below, the court may

reduce the defendants’ term of imprisonment as provided

by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C.

§ 3582(c)(2), any such reduction in the defendant’s

term of imprisonment shall be consistent with this

policy statement.

U.S.S.G. § 1B1.10(a)(1).

Exception. If the original term of imprisonment

imposed was less than the term of imprisonment provided

by the guideline range applicable to the defendant at

the time of sentencing, a reduction comparably less

than the amended guidelines range determined under

subdivision (1) of this subsection may be appropriate. 

However, if the original term of imprisonment

constituted a non-guideline sentence determined

pursuant to 18 U.S.C. § 3553(a) and United States v.

Booker, 543 U.S. 220 (2005), a further reduction

generally would not be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B).

The government opposes defendant’s motion on grounds that

the court already took into account the anticipated crack

guideline reduction when it fashioned its Booker sentence, so no

further reduction is warranted. Defendant counters that while

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 3 of 6
2 That defendant has a good record post-sentencing, and has

continued to make substantial progress in dealing with her

addiction, are not to be overlooked. But those facts relate

primarily to the availability of a sentence reduction under the

retroactive amendment, and not to her entitlement to a full

resentencing hearing. See, e.g., U.S.S.G. § 1B1.10(a)(3) and

Application Note 1(B).

4

the court explicitly did take the then-proposed reduction into

account, several other factors also animated the decision to

impose a Booker sentence, so the full reduction contemplated

under the applicable policy statement should obtain.

First, to the extent defendant seeks a full resentencing on

the theory that the retroactive crack amendment opens the door to

such a process, the motion is denied. Booker applied at the time

of sentencing and, as noted, defendant actually received a Booker

sentence. And, the court took into account the proposed

amendment in fashioning the variant sentence. So, even if a full

resentencing would be appropriate, which I doubt, I still would

not exercise my discretion to resentence in full, since the

outcome would be the same — the only variable of significance

between the original sentencing and the current motion is the

fact that the crack amendment is now retroactive.2

Second, to the extent the government says no further

reduction is warranted because the then-proposed change in the

crack guideline was taken into account in fashioning the Booker

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 4 of 6
5

sentence imposed, it overlooks the fact that the 18 months

imposed (under Booker) is now equivalent to the bottom of the

newly-applicable guideline range. So, leaving the sentence as is

would effectively deprive defendant of the sentence reduction

allowed in substantial part on grounds unrelated to the thenproposed crack guideline amendment.

It is not possible to quantify with precision just what

mathematical fraction accurately reflects that part of the

reduced sentence attributable to the anticipated crack guideline

adjustment and what part is attributable to the other factors

noted by this court. Suffice it to say that part of the Booker

reduction did relate to the anticipated amendment, but certainly

not all, and certainly not none.

The sentence imposed under Booker was six months lower than

the bottom of the then-applicable guideline range (18 mos.

instead of 24 mos). Eighteen months, as noted at sentencing,

equated to TOL 13/CHC III. Now, TOL 13/ CHC III is the correct

recalculated advisory guideline range, which provides for a low

end of 18 months imprisonment. Considering that retroactively

adjusted advisory range (which fully accounts for the amendment

as a factor in determining a variant sentence), a further

reduction is warranted to account for the other § 3553(a) factors

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 5 of 6
6

upon which the court based the variant sentence previously

imposed. That reduction, the amended policy statement wisely

counsels, should generally be “comparably less” than the amended

guideline range when compared to the reduction from the

originally calculated guideline range.

Conclusion

Defendant’s motion is granted. An amended judgment shall be

entered imposing a sentence of 13 months imprisonment. That

sentence constitutes a reduction roughly approximate to the

guidelines-counseled reduction, and also reflects the variant or

Booker sentence the court would most likely have imposed in July

of 2007, had the crack guideline amendment been effective and

applicable to defendant’s case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

March 4, 2008

cc: Aixa Maldonado-Quinones, AUSA

Jeffrey S. Levin, Esq.

U.S. Probation

U.S. Marshal

Case 1:07-cr-00065-SM Document 37 Filed 03/04/08 Page 6 of 6