District Court has authority to reduce a sentence under the FSA Amendments to the crack cocaine sentencing guidelines for this pre-FSA sentence
In U.S. v. Liberse, the defendant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine in 2006. At the time of his offense, his guideline range was 121 to 151 bases on the quantity of crack cocaine. Though the mandatory minimum was 120 months, his sentence of 121 months was one month above the statutory mandatory minimum. The mandatory minimum did not affect the sentence because it was less than the guideline range. The government later filed a motion to reduce his sentence pursuant to Rule 35(b) for his substantial assistance in the prosecution of another case. The district court reduced his sentence below the statutory minimum to 97 months.
In 2010, the Fair Sentencing Act (FSA) increased the drug amounts that trigger the mandatory minimum sentences (from 5 grams to 28 grams with respect to the 5 year minimum and from 50 grams to 280 grams with respect to the 10 year minimum sentence.) After enactment of the FSA, the Sentencing Commission promulgated Amendment 750 which revised the crack cocaine quantity table of 2D1.1(c) and Amendment 759 made it retroactive.
Liberse filed a motion pursuant to 18 U.S.C. §3582(c)(2) to reduce his sentence because under this Amendment Liberse’s guideline range was lowered to 70 to 87 months and The district court denied the motion for the reason that Liberse was subject to the same 120 month mandatory minimum sentence that was in effect before the FSA and the district judge in this federal court in Ft. Lauderdale, Florida, believed the Commission did not have authority to alter a statutory mandatory penalty. The 11th Circuit court overturned the decision finding that the revised crack cocaine quantity table lowered his base offense level to the point where his new guideline range would be 70 to 87 months. The open question that was not decided by Dorsey v. U.S. (applying the FSA to offenses that took place before the Act but sentenced after the enactment) is whether the reduced mandatory minimum quantities under the FSA apply to a Liberse whose offense and sentence took place before enactment. It was not decided by this decision and 11th Circuit will allow the district court to decide if the FSA mandatory minimum quantities apply to Liberse’s case. Either way his sentence will be reduced. It could be reduced by one month if the district court finds the FSA does not apply to reduce the mandatory minimum for Liberse (the mandatory minimum of 120 months is still less than his original guideline range of 121 months). Or it could find the FSA does apply and reduce the sentence to the new guideline range of 70 to 87 months. Also, because Liberse received a Rule 35(b) sentence reduction to his original sentence for substantial assistance, the sentencing court can reduce his sentence, pursuant to Amendment 759, which provides for a reduction that is “comparably less than the amended guideline range” if the term of imprisonment imposed was less than the normal guideline range because of the defendant’s substantial assistance. For this reason the district court did have the authority to reduce the sentence.