Posts Tagged ‘sentence reduction’

Defendant not entitled right to counsel for Section 3582(c)(2) motion.

Monday, July 20th, 2009

United States v. Webb, 565 F.3d 789 (11th Cir. April 13, 2009)

The District Court properly denied defendant’s §3582(c)(2) motion.

The defendant was convicted of drug charges in 2000 and his base offense level was 38 under the Guidelines Section 2D1.1(c). However, being a career offender and having a category VI criminal history, his guideline range was 360 months to life imprisonment. The court departed downward to 264 months. In 2008, the defendant filed a Section 3582(c)(2) motion to reduce his sentence based on Amendment 706 of the Sentencing Guidelines. The government also filed a second Rule 35(b) motion and the court reduced the sentence to 228 years. Although Amendment 706 lowered defendant’s offense level from 42 to 40, his amended guidelines range still remained 360 months to life and therefore the court had no authority to reduce the sentence. As such, the court did not need to examine the Section 3553(a) factors.

The defendant was not entitled the right to counsel for a Section 3582(c)(2) motion.

The Constitutional right to counsel does not extend to the statutory reduction motions because they are more like “a continuation of a criminal case” than a habeas petition. The decision to appoint an attorney is left to the discretion of the District Court and here, the court did not abuse its discretion.

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Posted in Right to counsel, Sentencing Guidelines, Sixth Amendment, downward variance | No Comments »

Sufficient evidence established that defendant’s pipe bombs were designed as weapons.

Tuesday, July 7th, 2009

United States v. Spoerke, 2009 WL 1424042 (C.A.11 (Fla.))

The defendant was convicted of conspiracy to unlawfully make destructive devices, unlawfully making one or more destructive devices, and possessing unregistered destructive devices at two different locations.  The defendant argued that the US failed to prove the devices were designed to be used as weapons. To be a destructive device under the National Firearms Act, the critical inquiry is whether the device, as designed, has any other value other than as a weapon. The defendant’s devices were destructive devices even if they contained no additional projectiles, because they have no social value.

The defendant was not entitled to a sentence reduction for acceptance of responsibility; and the imposition of a 44-month sentence did not amount to an unwarranted sentencing disparity.

The defendant challenged the calculation of his guidelines and the reasonableness of his sentence. Where a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse, he has not accepted responsibility and is not entitled to a reduction. Therefore, when the district court imposes a sentence within the advisory Guidelines range, it is ordinarily expected to be reasonable.

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Posted in Motion to Suppress Evidence, Sentencing Guidelines, Uncategorized, downward variance, sentence enhancement | No Comments »

Booker and Kimbrough do not apply to 18 U.S.C. Section 3582(c)(2) proceedings.

Monday, July 6th, 2009

United States v. Smith, 2009 WL 1374590 (C.A. 11 Fla.)

The District Court did not err in failing to grant defendant a greater sentencing reduction after the court granted defendant’s 18 U.S.C. Section 3582(c)(2) motion.

The defendant was convicted of a crack cocaine offense in 1993 and sentenced to 295 months imprisonment. In 2008, defendant filed a motion to modify his sentence pursuant to Amendment 706 of the Guidelines. The defendant asked that the court sentence him at the low end of or below his amended guideline range of 151 to 188 months. The district court sentenced him to 248 months. Defendant argued that the court abused its discretion by sentencing him at the high end of his amended guideline range.

Booker and Kimbrough do not apply to 18 U.S.C. Section 3582(c)(2) proceedings.

The Eleventh Circuit maintained that a district court is bound by the limitations on its discretion imposed by Section 3582(c)(2) and the applicable policy statements by the Sentencing Commission. (held in United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009)).

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, downward variance | No Comments »