Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEW A United States Attorney District of Arizona RACHEL C. HERNANDEZ Assistant U.S. Attorney Arizona State Bar No. 016543 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-00-223-PHX-SRB Plaintiff, v. Zachary Dion Arnold, Defendant. The United States of America, by and through undersigned counsel, hereby responds to Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. §3582. Defendant asks to be resentenced to a lower term of imprisonment based on the recent sentencing guideline amendment adjusting base offense levels for crack cocaine levels. As set forth more fully below, the Court has discretion to grant defendant's motion. The government recommends that the Court exercise its discretion and sentence defendant to a sentence of no less than 135 months, the low-end of the new guideline range. I. PROCEDURAL HISTORY On March 8, 2000, a federal grand jury returned an indictment against defendant charging him with three counts of Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. §841(a)(1). Trial to a jury commenced on November 27, 2000. Defendant testified on November 29, 2000. On November 29, 2000, the jury returned a verdict of not guilty on count one and guilty on counts two and three. A Presentence Report was prepared, listing a base offense level of 34 based on the total amount of drugs­235.1 grams of cocaine base. After a two-level reduction for acceptance of GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. §3582

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responsibility, defendant's total offense level was 32. Defendant was found to be in Criminal History Category IV, making his sentencing range 168 to 210 months. On April 5, 2001, defendant was sentenced to 168 months in prison on counts two and three, five years supervised release and a special assessment of $200.00. Defendant filed a direct appeal and oral argument was held before the Ninth Circuit Court of Appeals. On May 10, 2002, the Court of Appeals affirmed the judgment of this Court. On February 18, 2003, defendant filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255. On June 21, 2004, this Court denied defendant's motion. II. STATEMENT OF FACTS On December 15, 1999, defendant sold 13.1 grams of a mixture or substance containing crack cocaine to a confidential informant in Phoenix, Arizona for $300.00. On February 14, 2000, defendant sold 82.9 grams of a mixture or substance containing crack cocaine to a confidential informant in Phoenix, Arizona for $1800.00. On March 1, 2000, defendant sold 139.1 grams of a mixture or substance containing crack cocaine to a confidential informant in Phoenix, Arizona for $3000.00. All of the above transactions were conducted while under surveillance by law enforcement. The transactions and the phone calls arranging the transactions were recorded. The recordings were presented to the jury. At trial defendant testified consistent with the facts stated above except that defendant claimed that there were numerous other phone calls between the informant and defendant which were not recorded. Defendant testified that during those calls the informant played upon the familial connection between the informant and defendant to convince defendant to procure and sell crack. It was those alleged unrecorded calls which formed the basis for defendant's entrapment claim. The informant denied any calls between himself and defendant during the time period covered in the indictment other than what was recorded. // // // 2

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III. ARGUMENT A. The Sentencing Guidelines Amendment Is to be Applied Retroactively In order to determine the applicability of an amendment to the Sentencing Guidelines (U.S.S.G.), both Title 18 of the United States Code and the Guidelines themselves must be consulted. Title 18, Section 3582(c)(2) provides: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The United States Sentencing Commission recently changed its policy applying the guidelines to cases involving crack cocaine. In Section 1B1.10, the Sentencing Commission identified the amendments which may be applied retroactively pursuant to § 3582(c), and articulated the proper procedure for implementing the amendment in a concluded case. 1/ On December 11, 2007, the Commission issued a revised version of Section 1B1.10, which emphasizes the limited nature of relief available under 18 U.S.C. § 3582 (c). This revised section, effective on March 3, 2008, provides, in relevant part: (1) In General.--In a case in which a defendant is serving a term of imprisonment, and the guideline 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 defendant's 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.

Section 1B1.10 is based on 18 U.S.C. § 3582(c)(2), and also implements 28 U.S.C. § 994(u), which provides: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." A guideline amendment may be applied retroactively only when expressly listed in Section 1B1.10(c). See, e.g., United States v. Cueto, 9 F.3d 1438, 1441 (9th Cir. 1993). 3

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(2) Exclusions.--A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-- (A) none of the amendments listed in subsection (C) is applicable to the defendant; or (B) an amendment listed in subsection (C) does not have the effect of lowering the defendant's applicable guideline range. (3) Limitation.--Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant. The amendment upon which defendant relies is Amendment 706, effective November 1,

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2007, which reduced the base offense level two levels for most crack offenses. 2/ On December 11, 2007, the Commission added Amendment 706 to the list of amendments stated in Section

10 1B1.10(C) that may be applied retroactively, effective March 3, 2008. When reducing the crack 11 cocaine base offense levels, the Commission reasoned that it could respect statutory mandatory 12 minimum drug penalties while still reducing the offense levels for crack offenses, 13 notwithstanding its stated criticism of the 100:1 ratio applied by Congress to powder cocaine and 14 crack cocaine offenses when setting those minimum penalties. See U.S.S.G., Supplement to 15 16 Previously, the Commission had set the crack offense levels in Section 2D1.1 above the 17 range which included the mandatory minimum sentence. 18 Commission has set the offense levels so that the resulting guideline range includes the 19 mandatory minimum penalty triggered by that amount, and then set corresponding offense levels 20 for quantities which fall below, between, or above quantities that trigger statutory mandatory 21 minimum penalties. For example, a trafficking offense involving five grams of crack cocaine 22 23 24 25 26 27 28 Amendment 706 was further amended in the technical and conforming amendments set forth in Amendment 711, also effective November 1, 2007. In Kimbrough v. United States, ____ U.S. ____, 2007 WL 4292040 (2007), the Court held that district courts "may consider the Guidelines' treatment of crack and powder cocaine offenses" in deciding whether to vary from the advisory Guidelines range for crack offenders. However, that issue is not pertinent here, because this case involves only a requested § 3582(c)(2) reduction based on a specific guideline amendment. 4
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App. C, Amend. 706. 3/

Under the amendment, the

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requires a statutory mandatory minimum sentence of five years imprisonment. See 21 U.S.C. § 841(b)(1)(B). Therefore, the revised guideline applies an offense level of 24 to a quantity of crack of at least five grams but fewer than 20 grams; at criminal history category I, this level produces a guideline range of 51-63 months (encompassing the 60-month mandatory minimum). The final result of the amendment is a reduction of two levels for each of the guideline ranges for crack offenses. At the high end, the guideline previously applied offense level 38 to any quantity of crack of 1.5 kilograms or more. That offense level 38 now applies to a quantity of 4.5 kilograms or more. A quantity of at least 1.5 kilograms but fewer than 4.5 kilograms falls in offense level 36. At the low end, the guideline previously assigned level 12 to a quantity of less than 250 milligrams. That offense level 12 now applies to a quantity of less than 500 milligrams. Amendment 711 also made conforming amendments to the drug conversion chart, which is employed where the offenses of conviction involved crack as well as other controlled substances. B. Defendant's Sentence May Be Reduced. Defendant is correct that Amendment 706 reduced the guideline range applicable in his case, and therefore the Court may consider whether to reduce his sentence. Specifically, the base offense level in this case is now 32 , pursuant to amended Section 2D1.1; when combined with the other guideline applications made earlier, the final offense level is 30. At the established criminal history category of IV, this would result in a sentencing range of 135 to 168 months. This is a reduction from the previously applied range of 168 to 210 months. 1. Sentence Reduction is Discretionary Although the defendant may qualify for a reduction in sentence under Section 3582(c)(2) and the applicable policy statements of the Commission, a reduction of sentence is not automatic. This Court's discretion is set forth in Section 3582(c)(2) itself, which provides: "the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Thus, "[t]he grant of authority to the 5

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district court to reduce a term of imprisonment is unambiguously discretionary," even when the guideline range is actually reduced. United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). Similarly, Section 1B1.10 directs that "the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining . . . whether a reduction in the defendant's term of imprisonment is warranted. Id. app. note 1(B)(I); see also U.S.S.G. § 1B1.10 background ("The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter of right."). Courts have routinely upheld district courts' discretion in declining to reduce sentences. United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995) (district court permissibly declined to reduce sentence); United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997); United States v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993); United States v. Wales, 977 F.2d 1323, 1327-28 (9th Cir. 1992); United States v. Mueller, 27 F.3d 494, 497 n.5 (10th Cir. 1994). "Thus, reading § 3582(c)(2) and the Sentencing Guidelines together, the district court must make two distinct determinations before deciding whether to reduce a defendant's sentence under § 3582(c)(2)." Vautier, 144 F.3d at 760. First, Section 1B1.10(b) directs: In determining whether, and to what extent, a reduction in the term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced .... In other words, "the court must substitute the amended guideline range for the originally

22 applied guideline range and determine what sentence it would have imposed. In undertaking this 23 first step, only the amended guideline range is changed. All other guideline application 24 decisions made during the original sentencing remain intact." Vautier, 144 F.3d at 760. Then, 25 in the second step, "in light of the conclusion reached in the first step, the court must consider 26 27 28 6

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the factors listed in § 3553(a) and determine whether or not to reduce the defendant's original sentence." Id. 2. Sentence Reduction is Limited The extent of the reduction is strictly limited. Congress delegated to the Sentencing Commission the authority to determine to what extent a sentence may be reduced. See 18 U.S.C. § 3582(c)(2); 28 U.S.C. § 994(u). The Commission, in turn, directed in Section 1B1.10(b) that, with one exception (where the defendant earlier received a below-guideline sentence, which was not the case here), "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1)." U.S.S.G. § 1B1.10(b)(2)(A).
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Thus, the Court may not reduce the sentence below the range provided by the amended

guideline, and "in no case . . . shall the term of imprisonment be reduced below time served." U.S.S.G. § 1B1.10 app. note 3. In United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), th Ninth Circuit held that, when applying a retroactive guideline amendment in a Section 3582(c)(2) proceeding, the newly calculated range must be treated as advisory and not mandatory, citing United States v. Booker, 543 U.S. 220 (2005). Hicks answered two questions: (1) "whether § 3582(c)(2) proceedings fall within the scope of Booker's ambit," and (2) "whether policy statements by the Sentencing Commission nonetheless preclude the application of Booker to § 3582(c)(2)." Hicks, 472 F.3d at 1169. The court held that "Booker abolished the mandatory application of the Sentencing Guidelines in all contexts," that treating the recalculated guideline range in a Section 3582(c)(2) proceeding as advisory "is not inconsistent with any applicable policy statement," and that "to

An application note adds: "Under subsection (b)(2), the amended guideline range determined under subsection (b)(1) and the term of imprisonment already served by the defendant limit the extent to which the court may reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement. Specifically, if the original term of imprisonment imposed was within the guideline range applicable to the defendant at the time of sentencing, the court shall not reduce the defendant's term of imprisonment to a term that is less than the minimum term of imprisonment provided by the amended guideline range determined under subsection (b)(1)." U.S.S.G. § 1B1.10 app. note 3. 7

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the extent that the policy statements are inconsistent with Booker by requiring that the Guidelines be treated as mandatory, the policy statements must give way." Hicks, 472 F.3d at 1169, 1173. 5/ Even applying Hicks, this Court should exercise its discretion to deny a further sentencing reduction below the amended guideline range. The Ninth Circuit recognized that a defendant seeking a reduced sentence on account of a retroactive guideline amendment "is not entitle to a sentence reduction as a matter of right," but only as "a matter of discretion." Hicks, 472 F.3d at 1172. Even in an original sentencing proceeding, the Guidelines remain influential. See

Gall v. United States, 128 S. Ct. 586, 596 (2007) ("to secure nationwide consistency, the Guidelines should be the starting point and initial benchmark" for sentencing); United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) ("[The] continuing duty of district courts to consult the Guidelines is statutory."). IV. CONCLUSION In light of the factors set forth in 18 U.S.C. § 3553(a), the government's recommendation for low end at the original sentencing, and the court's assessment at the original sentencing that the low end was the correct sentence, the government believes that a sentence at the low-end of the amended guideline is appropriate. Accordingly, the government recommends that,

consistent with the statutory scheme and the policy statements of the Sentencing Commission, defendant be sentenced to 135 months. Respectfully submitted this 13 th day of March, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona

RACHEL C. HERNANDEZ Assistant U.S. Attorney

The government respectfully disagrees with the decision in Hicks and reserves the right to challenge its holding on appeal. 8

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on this date, I mailed this document to: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Zachary Arnold Reg #45056-008 FCI­Milan PO Box 1000 Milan, MI 48160

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