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Federal Sentencing: Reduction of Sentence – Amendment 706 and District Court Discretion under § 3582 – Controlled Substances


– V.-

LAWRENCE JOHNSON, ALBERTO FLAHARTY, also known as Enrique, also known as Rique, GARTH BRUCE, also known as G-Man, Defendants-Appellants.

Decided January 28, 2011 Second Circuit Court of Appeals.

Federal Sentencing: Reduction of Sentence – Amendment 706, District Court Discretion under § 3582, United States Sentencing Guidelines – Controlled Substances

Issue : Whether the defendants are eligible to have their sentences reduced due to Amendment 706 and did the District Court abuse its discretion when if refused to modify the defendants’ motions filed under § 3582.

Holding :

Because the weight of the controlled substances attributed to each of them is so great that their respective sentencing ranges would be the same under the amended Sentencing Guidelines as they were under the prior Guidelines, Johnson, Flaharty, and Bruce are not eligible for reductions of sentence.

Facts :

Lawrence Johnson, Alberto Flaharty, and Garth Bruce appeal from the orders of United States District Court for the Eastern District of New York (Gleeson, J.) denying their motions to reduce their sentences pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.

The defendants were all convicted of conspiracy to distribute and possess with intent to distribute narcotics within 1,000 feet of a public elementary school in violation of 21 U.S.C. § 846 and 860. For purposes of sentencing on this count, the district court made findings of fact with respect to the amount of crack cocaine sales attributable to the defendants. It found that, as coconspirators, the defendants were each personally responsible for the operation’s total sales-between 14.7 kilograms and 26.5 kilograms of crack cocaine per year adding up to a total of around 88 kilograms.

Based on those drug quantities, the defendants’ criminal histories, and a variety of aggravating and mitigating factors, the district court sentenced Johnson and Bruce principally to life in prison. It gave Flaharty a downward departure, sentencing him principally to a 15-year prison term.

Discussion and Analysis :

Section 3582(c)(2) allows a district court to modify a prison sentence where a defendant

“has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission’s policy statement associated with Amendment 706 is explicit, however, that “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 . . . [Amendment 706] does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2) (emphasis added). In other words, a defendant is eligible to have his sentence modified only if the amended Guidelines provide for a lower sentencing range than did the former Guidelines.

The Second Circuit held that because the defendants’ guideline sentencing ranges have not be altered by Amendment 706 to the Guidelines, the defendants are ineligible for reductions of their terms of imprisonment.

The district court did not err by sentencing Flaharty on the basis of an amount of crack cocaine in excess of the amount for which he was originally charged with conspiring to distribute. United States v. Santiago, 906 F.2d 867, 871 (2d Cir. 1990) (“[Q]uantities of narcotic neither charged in the indictment nor physically seized are ‘relevant conduct’ for calculation of the base offense level if they were part of the same course of conduct as the counts leading to conviction.” (quoting United States v. Schaper, 903 F.2d 891, 898 (2d Cir. 1990))).

It is well settled that individual defendants are responsible for all reasonably foreseeable quantities of drugs distributed by a conspiracy of which they were members. United States v. Payne, 591 F.3d 46, 70 (2d Cir. 2010). Here, the jury found that Johnson and Bruce conspired to distribute narcotics within 1,000 feet of an elementary school, and the district court expressly adopted the findings of their respective pre-sentence reports, which determined that the conspiracy was responsible, over the course of its life, for roughly 88 kilograms of crack cocaine sales. It was appropriate, therefore, for the district court to attribute the 88 kilograms to Johnson and Bruce for the purposes of sentencing.

There is no basis in the record to challenge successfully the district court’s determination of the quantities of crack cocaine attributable to the defendants for the purposes of calculating their sentencing guideline ranges. Those ranges were not affected by Amendment 706. The district court was correct that neither Flaharty, Johnson, nor Bruce are eligible to have their sentences reduced as a result of that amendment.