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Sentencing Guidelines Applied, Not Applicable, Determine FSA Eligibility

By William Peacock, Esq. on January 03, 2013 | Last updated on March 21, 2019

Crack is whack. But what was more whack was the discrepancy in sentences between powdered and rock cocaine. After all, shoot it, snort it, or smoke it - it’s all coke.

As most of you are well aware, the Fair Sentencing Act of 2010 addressed that minor discrepancy and allowed those sentenced under the previous unfair laws to petition for a revised sentence. Robert Pleasant did just that, and on March 23, 2012, his sentence of 77 months was reduced to 60 months.

And yet, it’s never that simple, is it?

In an opinion released on Tuesday, the Ninth Circuit ruled that it is not the sentence applied but the sentence initially applicable that determines one's eligibility for a sentence reduction under the FSA.

Pleasant was originally facing up to 235 months under the career offender guidelines. Thanks to a plea bargain, he was sentenced under the crack cocaine guidelines and given a sentence in the lower end of the spectrum, specifically 77 months.

Under Leniear, a sentence can be reduced if (1) the sentence is based on a range that has been lowered by the Sentencing Commission and (2) if such a reduction is consistent with applicable policy statements issued by the commission.

Pleasant was sentenced under the wacky crack guidelines that have since been lowered. But that plea only happened because he was originally facing the career offender sentence. In a way, it was based on both.

To clarify, we look at the Freeman plurality, where Justice Sotomayor's concurrence is controlling. She stated that a plea bargained sentence is "based on" a guideline if the agreement expressly uses a specific sentencing range applicable to the charged offense and that sentencing range is subsequently amended.

For purposes of Freeman, the sentence is therefore "based on" the crack range, since it was expressly cited in the agreement.

But what about policy? The policy in question is found at U.S.S.G. § 1B1.10(a)(1), which provides that a reduction is appropriate when "the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines."

Still not seeing the problem? The crack sentence was applied. The career offender sentence was applicable. Which sentence is to be considered for purposes of § 1B1.10(a)(1)?

For that, the court cited the U.S.S.G.'s notes on the section, which explicitly state that the applicable guideline range is "determined before consideration of any departure provision in the Guidelines Manual or any variance."

In plain English: Pleasant won't catch a break twice. Per the policy prong of Leniear's departure test, and the U.S.S.G.'s notes on their policy statement, the applicable range is to be determined before any variance. His plea bargain already provided the variance, which brought him into the old crack cocaine sentencing range.

If you need to reread that entire process, we understand. We read the opinion twice ... or six times ourselves.

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