Bad Result for Crack Defendants Who Previously Received Booker Variances

U.S. v. Brown, 2009 WL 486775 (2/27/09) (Published)

The 10th interprets USSG § 1B1.10(b)(2) to mean generally it would not be appropriate to reduce a sentence based on the crack guideline reduction amendment where the district court originally gave a downward variance under Booker and 18 USC § 3553(a). Even the Commission doesn't agree with that. Only when the district court has not considered the guideline range, [which is never] should the defendant not get a further reduction, the Commission has said. In the usual case, the pre-crack amendment range would have affected the district court's sentence. So lowering the range should lead to a further sentence reduction. Yet, in upholding the denial of defendant's request for appointed counsel, the 10th calls the defendant's reduction request "clearly" contrary to the Commission's policy statement. It was no such thing.

The circumstances of this case were not so compelling for the defendant, however. The district court reduced the defendant's offense level four levels because of the unfair crack-powder ratio. So, while affirming the failure to reduce the sentence in this case might make sense, the 10th has created bad case law for others. The 10th also troublingly says § 3553(a) played no role in the district court's decision not to resentence. The statute seems to very clearly require consultation with § 3553(a) in making that decision.