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Defendants Convicted of Crack Offenses Who Received Cooperation Departures Below the Mando are not Barred From Seeking a Sentence Reduction Under Section 3582(c)(2)

In United States v. Savani, Nos. 11-4359/11-4494/12-1034, the Third Circuit held that Amendment 750 to the Sentencing Guidelines superseded United States v. Doe, 564 F.3d 305 (3d Cir. 2009), and allows defendants who were sentenced below their mandatory minimum sentences for substantial assistance to move for a sentence reduction under 18 U.S.C. § 3582(c)(2). The three appellants in Savani were in similar positions. All three were facing mandatory minimum sentences for crack offenses - Savani and Herbert were facing 10 years, and Roe was facing twenty years, due to his prior conviction. All three defendants entered into cooperation plea agreements with the government, and they all received sentences below the mandatory minimums.

After the Fair Sentencing Act ("FSA") was passed in August 2010, the Sentencing Commission amended U.S.S.G. § 2D1.1 by reducing the guidelines to correspond to the18:1 ratio that now triggers mandatory minimum sentences under the FSA. All three defendants filed motions to reduce their sentences under § 3582(c)(2). All three motions were denied by the district courts, citing Doe.

Doe held that the Sentencing Commission’s policy statement § 1B1.10(b)(2)(b), precluding sentence reductions if a defendant’s "applicable guideline range" is not reduced by the amendment, prevented reductions in cases like these. "Applicable guideline range" was not then defined, but the Doe Court ruled that it must mean the starting point for calculation of the sentence - in these cases, the mandatory minimum, not the crack guideline range. Thus, the defendants were ineligible under § 3582(c)(2), because even if their departures were somehow "based on" the now-lower crack guideline range, granting relief would be inconsistent with the Commission’s policy statement.

In 2011, however, when the Commission issued the most recent retroactive crack amendment, it also offered a definition of the term "applicable guideline range." According to Application Note 1(A) to U.S.S.G. § 1B1.10, the"applicable guideline range" is "the guideline range that corresponds to the offense level and criminal history category determined pursuant to U.S.S.G. § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance." U.S.S.G. § 1B1.10 cmt. n.1(A).

In a 2-1 decision, the Court determined that this language supersedes Doe, and that the defendants were eligible for relief. The majority reached this decision on rule of lenity grounds. It first examined multiple Guidelines provisions, seeking to clarify the definition and the Commission’s intent, but it concluded that it was unclear whether - in the context of cooperators receiving substantial assistance departures - the definition referred to the guideline range or the mandatory minimum guideline sentence.

Judge Fuentes filed a separate opinion concurring in the result, but expressing the opinion that the plain language of the emergency amendments rendered the appellants eligible for sentence reductions. His opinion relied primarily on an analysis of the language of the definition as compared with the eight-step sentencing process.

The government is considering whether to seek rehearing or to petition for certiorari.  However, in the meantime, the government may not oppose bail for defendants who might otherwise be eligible for immediate release under the amendment.

Congratulations to Sarah Gannett for an amazing job, and special thanks for her help on this post!

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