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August 7, 2008

District Court Declines to Extend Booker to § 3582 Resentencings

On Monday, in United States v. Atwell, the Middle District of Florida held that Booker should not be extended and applied to § 3582 resentencings.  Randall Atwell had been convicted of possession with intent to distribute and distribution of more than 50 grams of crack.  Although originally sentenced to life imprisonment, Atwell’s sentence was vacated and he was re-sentenced to 210 months’ imprisonment.  Thereafter, Amendments 706 and 711 to the guidelines were retroactively adopted to address the disparity between crack and powder cocaine sentences by reducing the crack guidelines.  Thus, pursuant to 18 U.S.C. § 3582(c), the court had the authority to reduce the defendant’s prison term further to 168 months.  The defendant, however, argued for an even steeper reduction to 120 months—the statutory mandatory minimum under 21 U.S.C. § 841—under Booker.

Although noting the lack of accord among district courts across the country on whether Booker should apply to § 3582 resentencings, the court ultimately rejected the defendant’s argument. 

[H]aving considered all available persuasive authority on the subject, this Court finds Judge Steel’s Opinion in United States v. Speights, 2008 U.S. Dist. LEXIS 10356 (S.D. Ala. June 23, 2008), to be a sound and accurate statement of the reasons Booker does not apply to § 3582 resentencings.  Therefore, this Court incorporates that Opinion by reference herein and finds that it is without jurisdiction to reduce [defendant’s] sentence below 168 months.

Download UnitedStatesv.Atwell.pdf

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I don't understand the argument why Booker would apply in these cases. Anyone care to explain? (I've read Hicks, but that case didn't make much sense to me.) And if Booker did apply, wouldn't that mean that the district court could give the defendant a higher sentence if it so chose?

Posted by: Not the same | Aug 7, 2008 10:00:44 PM

No, the dist. ct. could not give a higher sentence. 3582 only allows for sentence reductions.

And (to put it simply) the amended advisory Guideline range is only advisory because, after Booker, any time you are before a judge on sentencing, the Guidelines are advisory. It doesn't matter if it's re-sentencing, on remand, or in a 3582 proceeding.

Posted by: DEJ | Aug 8, 2008 12:47:13 PM

But if you can't receive a higher sentence in the proceeding, then how is the apprendi rule violated? Or are you saying that as a matter of statutory construction, the provision making the Guidelines mandatory has been erased, so there's no statutory hook making the Guidelines mandatory?

Posted by: Not the same | Aug 8, 2008 2:50:58 PM

You've overlooked several other rulings that have ruled that Booker does indeed apply in the context of a 3582(c) resentencing. Please see the United States District Court ruling in U.S. v. Ragland, found on Lexis at site 2008 U.S. Dist. LEXIS 58041 (D.D.C. 2008). In addition, the Middle District of Florida also ruled back in 2007, twice, that discretion is inherent in the context of 3582(c) proceedings- in the "bad math" table situations- in the cases of U.S. v. Barrett and U.S. v. Stokes.

The reason that the Guidelines are advisory in a 3582(c) resentencing is that, simply put, post-booker, the Guidelines must be advisory in ALL contexts. That was clearly affirmed in Kimbrough and Gall and, thankfully, district courts around the country are finally having the wherewithal to stand up and use the discretion they've been waiting for.

Posted by: P | Aug 8, 2008 3:22:41 PM

As it relates to Amendment 706. If a defendants guideline level is 42, 360/life, criminal history I, statutory maximum 240 months and the judge renders a 240 month sentence. The defendant is eligible for a 2 point reduction. The Public Defenders Office in the Southern District of West Virginia says the reduction comes off offense level 42, and therefore would result in an amended offense level of 40, 292/365 months. Making the defendant not eligible for a reduction. Is this correct?

Posted by: Todd Hayes Jr. | Aug 8, 2008 7:17:37 PM

Todd, it would depend on whether Booker applies to these motions. If Booker does not apply, then that defendant could not receive a sentence of less than 292 months in the re-sentencing. In other words, the defendant could not receive relief. If Booker does apply, the defendant could receive a sentence below 292 months, which would mean that he could obviously go below 240 months. So, to answer your question, the defendant could be elibile for a reduction if Booker does not apply. I don't see why the FPD's office wouldn't file a motion, (1) contending that Booker applies and (2) therefore the district court can, if it so chooses, render a sentence of less than 240 months. That being said, it is unlikely that a district court would ultimately determine, even if it could, to give a large below guideline sentence in this sort of situation.

Posted by: Not the same | Aug 8, 2008 7:41:09 PM

I take the position, that there is a path which could be taken where a Section 3582 new sentence would allow a new Section 2255 habeas corpus within one year of the grant of the new Section 3582 in the same manner as a Section 2255.

Generally, when a district court grants relief pursuant to § 2255, "the court shall vacate and set the judgment aside." The vacature of the judgment under § 2255 necessarily includes the defendant's sentence. See Teague v. Lane , 489 U.S. 288, 314 n.2 (1989) ("As we have often stated, a criminal judgment necessarily includes the sentence imposed upon the defendant."); see also United States v. Colvin , 204 F.3d 1221, 1224 (9th Cir. 2000) (recognizing that the judgment of conviction includes the adjudication of guilt and the defendant's sentence); Kapral v. United States , 166 F.3d 565, 569 (3d Cir. 1999) (same).Here, the district court granted the Defendant relief pursuant to § 2255.Under the procedures set forth therein, the original judgment and sentence were set aside and the district court "imposed" an amended criminal judgment and commitment order, which included the amendment to the defendant's sentence.

In this case, the court ultimately had to impose a new corrected sentence because the original sentence had been vacated pursuant to the mandate of § 2255. See United States v.Torres-Otero , 232 F.3d 24, 30-32 (1st Cir. 2000) (noting that the correction of sentence under§ 2255 involves the vacature of the original sentence and imposition of a new sentencing judgment). Because the district court vacated the Defendant's original sentence and imposed a new sentence pursuant to § 2255, the district court possessed jurisdiction to reduce the Defendant's sentence. See Ackerman , 619 F.2d at 288 (holding that a § 2255 vacature of an original sentence and subsequent reimposition of a new sentence affords a defendant a time within which to file a petition to reduce the new sentence").

Posted by: Dr. Paul Luskin | Jan 28, 2010 3:28:07 PM

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