In U.S. v. Colon, the defendant, Christina Colon, pleaded guilty to the federal crime of distribution of crack cocaine and possession of a firearm in furtherance of a drug trafficking offense. The Pre-sentence Report calculated her range at 46- 57 months and the district court varied down to 36 months. Pursuant to the firearm count the court imposed a mandatory minimum term of 5 years to run consecutively to the drug count, for a total of 96 months. Following the sentence, the Sentencing Commission issued Amendment 706, which reduced the base offense levels for crack cocaine offense. Colon filed a motion pursuant to 18 U.S.C. § 3582 to reduce her sentence. The district court found she was eligible and reduced her sentence under the drug count from 36 to 27 months leaving her with a total sentence of 87 months. Colon filed a second motion to reduce her sentence after enactment of the Fair Sentencing Act and the subsequent guidelines amendments. Amendment 750 issued by the Sentencing Commission, retroactively reduced the base offense levels for crack cocaine offenses. The Commission also issued Amendment 759 which restricted a district court’s discretion to make the reduction below the minimum of the amended guideline range, unless the original sentence imposed had been below the guideline range because of a reduction based on the defendant’s substantial assistance.
Under the new amendments the range, Colon’s range would be 30 to 37 months. The district court did not reduce her sentence because her current sentence was 27 months and below the new guideline range. The district court found the new amendment prevented the court from reducing the range because the original variance was not based on substantial assistance.
Colon claims the district court erred in applying Amendment 759 because the Sentencing Commission’s amendment of that policy statement exceeded its authority under the Sentencing Reform Act. The 11th Circuit rejected Colon’s challenge that Amendment 759 violated the ex-post Facto Clause. The court found the Amendment did not increase the punishment assigned by law when the act to be punished occurred. Colon’s guideline range after those amendments was the same as it would have been without them.
Colon also challenged the district court’s application of Amendment 759 because she argued the Sentencing Commission’s amendment exceeded its authority under the Sentencing Reform Act, 28 U.S.C. 994. This statute states that if the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” Two other circuits have found that the Sentencing Commission did not exceed its authority under section 994 in prohibiting reductions below a prisoners amended guideline range. The Court found the language of the Sentencing Reform Act section 994, authorizes the Commission to determine “in what circumstances and by what amount the sentences of prisoners may be reduced based on retroactive amendments.”
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