January 7, 2009
Notable crack reduction opinion from the Second Circuit
Virtually every day now we get a new opinion from the circuit courts about the legal rules surrounding federal sentence reductions pursuant to 18 U.S.C. § 3582(c)(2). The latest such decision is from the Second Circuit in US v. v. Williams (Lewis), No. 08-1065 (2d Cir. Jan. 7, 2009) (available here). Here is the court's summary of its work in this case:
Appellant appeals from a denial of a motion seeking a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) following the amendment to the Sentencing Guidelines applicable to crack cocaine violations. In denying the motion for resentencing, the District Court for the Northern District of New York (Mordue, J.), found that because Appellant’s original sentence was a non- Guidelines sentence resulting from a departure from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e), he was not eligible for a reduced sentence under the amended Guidelines. We agree with the district court’s interpretation of § 3582(c)(2) and find that Appellant is not eligible for a new sentence under the revised Guidelines because the Guidelines provision underlying the sentence that was finally imposed on the Appellant was not a provision affected by the subsequent amendment to the Guidelines. AFFIRMED.
January 7, 2009 at 10:43 AM | Permalink
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Lewis was my case. You need to review USA v. Richardson, 521 F.3d 149 (2d Cir. 2008) to get full comprehension of the Lewis decision. In Richardson, one of our district judges departed from 240 months to time-served, based on a 3553(e)/5K1.1 motion. The court reversed saying the judge had relied on reasons beyond those allowed by 3553(e) and described in 5K1.1(i.e., substantial assistance). The panel then withdrew that opinion completely and added a new one with one additional sentence: "In arriving at a final sentence, of course, the district court may consider other factors in determining whether to grant the full extent of the departure permitted by § 3553(e)." Some folks, including the judge who got reversed, took that language to mean that to mean "of course all the 3553(a) factors are relevant to determining how far a substantial assistance departure may go." I was not one of those optimists, but I was reluctant to concede that point during the Lewis oral argument. Judge Peter Hall, sat on both panels in Richardson and Lewis. During the argument, he and I had about a 20 minute discussion about this issue, while opposing counsel and the other judges just sat there. His point, which is exactly repeated in Lewis, is that 3553(e) limits a substantial departure to the mandatory minimum unless the judge's stated reasons for going below it are tied to the assistance itself. In other words, the judge may depart 10 years below the minimum because the assistance was particularly helpful and that it put the defendant in great danger, but the judge may not depart even an additional day below the minimum for the reason that the defendant's crime was aberrant behavior within the meaning of 5K2.20. Therefore, the consideration of "other factors" in Richardson merely means that once the district judge has determined the lowest point of the substantial assistance departure, the judge may then limit that departure by relying on "other factors" such as the original guideline range (e.g., it was much higher). By applying this logic to Lewis, the panel has created a situation in which the basis for a 3582(c)(2) reduction will depend upon the district judge's willingness to state whether the original departure was limited in some way by reference to the guidelines. The answer was easy in Lewis because in refusing relief, the district judge explicitly denied relying on the guidelines at all. This is really a fiction because all judges in this district begin their departure analysis based on the original range. They also regularly take other factors into account in extending the length of a substantial assistance departure. They merely do not put those things on the record. Lewis and Richardson do not take into account what district judges have always done, and will probably continue to do. The district judges will just have to get better at hiding it. I guess the good news about Lewis is that it implies judges do have discretion to grant 3582(c)(2) relief, even when a mandatory minimum originally trumped the guideline range. All they have to do is say they considered the guidelines in limiting their substantial assistance departure. Some will want to do that and others won't, but at least it is discretionary and not an absolute bar as the government claimed.
Posted by: Alex Bunin | Jan 8, 2009 10:38:22 AM