You're viewing Docket Item 104 from the case USA v. Boyd. View the full docket and case details.

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No. CR06-1013-LRR






This matter comes before the court on the defendant’s motion to reduce sentence

(docket no. 96). The defendant filed such motion on December 30, 2011. Also before the

court is the defendant’s supplement to his motion to reduce sentence (docket no. 98), filed

on March 1, 2012, and second supplement (docket no. 101), filed on January 25, 2013.

In relevant part, 18 U.S.C. § 3582 provides:

The court may not modify a term of imprisonment once it has
been imposed except that . . . in 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 [18
U.S.C. §] 3553(a) to the extent that they are applicable, if such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2); see also United States v. Auman, 8 F.3d 1268, 1271 (8th Cir. 1993)

(“Section 3582(c)(2) is a provision that permits a district court to reduce a term of

imprisonment if the sentencing range upon which the term was based is subsequently

lowered by the Sentencing Commission.”). Given the record, the court concludes that it

need not appoint counsel or conduct a hearing with respect to whether relief is warranted

under 18 U.S.C. § 3582(c)(2). See United States v. Harris, 568 F.3d 666, 669 (8th Cir.

2009) (concluding that there is no right to assistance of counsel when pursuing relief under

18 U.S.C. § 3582(c) and finding that a judge need not hold a hearing on a motion pursuant

to 18 U.S.C. § 3582(c)); see also Fed. R. Crim. P. 43(b)(4) (stating that a defendant’s

presence is not required in a proceeding that involves the reduction of a sentence under 18

U.S.C. § 3582(c)).

Amendment 750 (Parts A and C only) amends USSG §1B1.10. On June 30, 2011,

the Sentencing Commission unanimously voted to apply Amendment 750 (Parts A and C

only) retroactively to cocaine base (“crack”) offenses, and it set November 1, 2011 as the

date that Amendment 750 (Parts A and C only) could be applied retroactively. Part A

amended the Drug Quantity Table in USSG §2D1.1 for crack offenses and made related

revisions to Application Note 10 to USSG §2D1.1. Part C deleted the cross reference in

USSG §2D2.1(b) under which an offender who possessed more than 5 grams of crack was

sentenced under USSG §2D1.1.

USSG §1B1.10, in relevant part, states:

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.

USSG §1B1.10(a)(1); see also USSG §1B1.10, comment. (n.1) (“Eligibility for

consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in

subsection (c) that lowers the applicable guideline range.”). The Sentencing Commission

included Amendment 750 (Parts A and C only) within subsection (c). USSG §1B1.10(c).

As an initial matter, the court notes that the defendant believes that he is serving a

308 month term of imprisonment. The defendant is mistaken. On December 15, 2008, the


court relied on 18 U.S.C. § 3582(c)(2) and USSG §1B1.10 to reduce the defendant’s

sentence to a 279 month term of imprisonment. Further, just as it did in 2008, the United

States Probation Office prepared a memorandum in September of 2011 that, among other

things, addresses the defendant’s eligibility for a sentence reduction under 18 U.S.C. §

3582(c)(2) and calculates the defendant’s amended guideline range. The United States

Probation Office also provided the court with additional documents in support of its

memorandum. Those documents include, but are not limited to, the defendant’s pre-

sentence investigation report and the Federal Bureau of Prison’s report on the defendant

while he has been incarcerated.

In light of the record, the defendant is eligible for a sentence reduction.1

Nevertheless, having reviewed the defendant’s file, the provisions and commentary of

USSG §1B1.10, the factors set forth in 18 U.S.C. § 3553(a), the nature and seriousness of

the danger to any person or community that may be posed by a reduction in the defendant’s

term of imprisonment and the defendant’s post-sentencing conduct, the court deems it

appropriate to exercise its discretion and to deny the defendant a reduction that is permitted

under 18 U.S.C. § 3582(c)(2) and USSG §1B1.10. The defendant’s criminal history and

disciplinary record since being incarcerated is alarming. Even though the court did not

grant the defendant the maximum reduction permitted in 2008 because of his criminal history

and post-sentencing conduct, the defendant did not elect to improve his behavior while


Because a reduction under 18 U.S.C. § 3582(c)(2) and USSG §1B1.10 is not

warranted at this time, the defendant’s motion to reduce sentence (docket no. 96) is denied

1 For purposes of the instant order, the court relied on the following determinations:

Previous Offense Level:

Criminal History Category:



Amended Offense Level:

Criminal History Category:



Previous Guideline Range:

324 to 405 months

Amended Guideline Range:

210 to 262 months


without prejudice. If he improves his disciplinary record and avails himself of available

courses within the Federal Bureau of Prisons over the next three years, the defendant may

move the court for a reduction in his sentence.

DATED this 31st day of July, 2013.