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September 5, 2008

Major Eleventh Circuit ruling on reach of crack retroactivity

The Eleventh Circuit today in US v. Moore, No. 08-11230 (11th Cir. Sept. 5, 2008) (available here), has the first major circuit ruling about the reach of the retroactive crack guidelines.  Here is how the decision starts:

In this consolidated appeal, Gary Moore, Ralph Edward Wester, Theodora Lawton, Clarence Collins, and Keith Maurice McFadden (“defendants”) appeal separate district court decisions denying their motions for reduced sentences under 18 U.S.C. § 3582(c)(2). The defendants’ motions were all based on Amendment 706 to the Sentencing Guidelines, which, together with Amendment 713, retroactively reduced the base offense levels applicable to crack cocaine offenses.  The district courts denied their motions on the ground that, because the defendants were sentenced as career offenders under U.S.S.G. § 4B1.1, Amendment 706 did not have the effect of lowering their applicable guideline ranges. We affirm.

September 5, 2008 at 01:41 PM | Permalink


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Wasn't this obvious on its face?

Posted by: mjs | Sep 5, 2008 5:09:53 PM

There goes the neighborhood and all hope for a reduction for low level drug offenders who also happen to be sentenced under 4B1.1. There are plenty of offenders who had just one or two pieces of crack cocaine who ended up with twenty year sentences. Not only does the 11th Circuit take a position that results in judicial legislation, they make sure to ignore the very mechanisms upon which the Sentencing Guidelines operate: (1) all drug sentences begin in Chapter 2 of the Guidelines (even crack cocaine sentences); then enhancements like in Chapters 3, 4 and 5 are applied, if applicable; (3) finally, the resulting range is calculated. (4) Thus, the cocaine base/crack amendment has the effect of lowering the "initial" starting point in the sentencing calculation. That is all 18:3582 requires. But today, the 11th Circuit finds that the statute says something more than is written. I despise courts that legislate from the bench.

Posted by: | Sep 5, 2008 6:40:09 PM

In response to the second poster: The amendment does lower the initial range, but the initial range is irrelevant for career offenders (except in cases where the initial range is higher than the career offender range). In the vast majority of cases, where the initial range gets raised by the career offender designation, the offender is sentenced based on the career offender range, which is unaffected by the retroactive amendment. In reaching the decision, the 11th cir joined another cir and numerous district courts. I'm not aware of any court that has held to the contrary. It's not legislating from the bench; it's following the fairly simple, plain language of the statute and guidelines. I agree w/ the first poster: it was obvious.

Posted by: d | Sep 5, 2008 7:57:35 PM

Methinks that the 6:40 pm poster would have had no problem with legislating from the bench if (as is the norm) an activist court would have ignored the plain letter of the law and found the opposite.

Posted by: MJS | Sep 5, 2008 9:06:03 PM

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