Tuesday, July 28, 2009
Booker Does Not Apply to the Size of a Sentence Reduction that May be Granted Under 18 U.S.C. § 3582(c)(2)
In United States v. Dillon, No. 08-3397 (June 10, 2009), the defendant challenged the size of reduction available under a § 3582(c)(2) re-sentencing in light of Booker. The defendant was convicted in 1993 of conspiracy to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, using a firearm during a drug trafficking crime and possession with intent to distribute more than 500 grams of cocaine. The district court sentenced him to 322 months, the bottom of a guideline range, based upon an offense level of 38 and a criminal history category of II. However, during the sentencing hearing, the court repeatedly stated its opinion that the sentence was too harsh and was in fact unreasonable. However, the court believed that it was bound by the guidelines. Following enactment of the crack cocaine amendment, the defendant filed a pro se motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The court partially granted his motion, reducing his offense level to 36 and his sentence to 270 months. However, the defendant appealed the partial grant of his motion, arguing that the district court should have treated the guidelines as advisory when adjusting a sentence pursuant to § 3582(c) and therefore granted him a greater reduction. The Third Circuit upheld the re-sentencing, thereby joining the majority of courts which have concluded that Booker does not apply to § 3582(c)(2) proceedings. The court relied on its reasoning in cases involving the determination of a defendant's eligibility for a sentence reduction under § 3582(c). Specifically, the court recognized that as § 3582(c) only serves to reduce a sentence reduction, not increase it, the constitutional holding in Booker does not apply. The court noted that Booker invalidated § 3553(b)(1), which does not cross- reference § 3582(c). The court also determined that Booker applies to full sentencing hearings-whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under § 3582(c)(2).