UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 08-cr-161-01-SM

 

Alan Houghton

O R D E R

The defendant, Alan Houghton, moves for a sentence reduction

based upon the cocaine base ("crack cocaine") amendments 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") (doc. no. 62). For the reasons stated

below, the defendant's motion to reduce sentence is DENIED.

On August 3, 2010, Congress enacted the 2010 Fair Sentencing

Act to restore fairness to crack cocaine sentences. 

Specifically, the 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 account for

specified aggravating and mitigating circumstances in certain

drug cases.

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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. 

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Having reviewed the offense of conviction, the sentence

imposed, and the pertinent record, it is clear that the defendant

is not eligible to seek a reduced sentence under the

retroactively applicable amendment.

On June 10, 2009, the defendant pled guilty to one (1) count

of Distribution of a Controlled Substance - Cocaine, in violation

of 21 U.S.C. § 841 (a), three (3) counts of Distribution of a

Controlled Substance - Cocaine Base (Crack), in violation of 21

U.S.C. § 841 (a), and one (1) count of Conspiracy to Distribute a

Controlled Substance (cocaine base "crack" in a quantity greater

than fifty (50) grams), in violation of 21 U.S.C. §§ 841 (a) and

846. Although the guideline sentencing range was below the

statutory minimum mandatory penalty, the defendant was subject to

a ten (10) year mandatory minimum sentence and the court imposed

a sentence of 120 months imprisonment and five years of

supervised release consistent with a binding sentencing

agreement. 

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

sentence reduction based on a retroactive application of the 2010

Fair Sentencing Act amendment (Amendments 750, Parts A and C). 

The statutory mandatory minimum sentence of ten (10) years still

sets the applicable Guideline Sentencing Range in the defendant’s

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case. The retroactive guideline amendment did not lower that

range — it was 120 months when defendant was sentenced and it

remains at 120 months now (because the Fair Sentencing Act’s

provisions are not retroactive). See, e.g., United States v.

Curet, ___ F.3d ___, 2012 WL 75392 (1st Cir. January 11, 2012). 

Because the defendant was sentenced pursuant to the statutory

minimum mandatory ten (10) year penalty provision, and the

retroactive crack base guideline amendment has no application to

the statutory provision for which he was sentenced, the amendment

has no impact on his sentence. 

The retroactive amendment, by its terms, does not apply to

defendant. Because “the guideline range applicable to . . .

defendant” has not been “lowered as a result of an amendment to

the Guidelines Manual listed in subsection (c),” U.S.S.G. §

1B1.10(a)(1), defendant is not entitled to sentence relief. See

also U.S.S.G. § 1B1.10(a)(2)(B). Application Note 1(A) to

Section 1B1.10 confirms that conclusion: “Accordingly, a

reduction in the defendant’s term of imprisonment is not

authorized . . . [if the retroactive amendment] does not have the

effect of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory

provision (e.g., a statutory mandatory minimum term of

imprisonment).”

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Because the defendant's guideline range was not lowered by

the retroactive amendment due to application of a statutory

mandatory minimum term of imprisonment, he is not eligible for a

reduction of his sentence. Defendant's motion to reduce sentence

(doc. no. 62) is DENIED.

SO ORDERED.

Date: March 12, 2012 ________________________________

Steven J. McAuliffe

United States District Judge

cc: Alan Houghton, pro se

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