Sunday, January 25th, 2009

Crack a Smile

United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)

Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed. It disregarded the career offender guideline range, and sentenced him under the offense level that would otherwise have applied. Subsequently, he moved for a sentence reduction under 18 U.S.C. § 3582(c), seeking the benefit of the retroactive two-point offense level reduction for crack cocaine offenses. Because he had originally been a career offender, however, the district court denied the motion.

Calling the issue a “very close one,” the appellate court disagreed, and remanded the case for reconsideration of the 3582(c) motion. The court noted that McGee’s sentence was indeed “based on” a range that was subsequently lowered by the Sentencing Commission “because the district court premised McGee’s ultimate sentence on the crack cocaine guidelines.” Here, the district court expressly indicated that it was using the offense level that McGee would have been in absent the career offender designation, which suggests strongly that it would have used the lower offense level if the sentencing had taken place after the amended crack guidelines went into effect.

The court also rejected the government’s argument that the policy statement implementing the amendment refers specifically to the pre-departure guideline range. Although this argument was “not without force,” the court concluded that the policy statement “does not preclude the possibility that a defendant who was, even if by virtue of a departure, sentenced ‘based on’ the crack guidelines would be eligible for a reduction.”

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