553 F.3d 225 (2nd Cir. 2009), 08-1619, United States v. McGee

Docket Nº:Docket 08-1619-cr.
Citation:553 F.3d 225
Party Name:UNITED STATES of America, Appellee, v. Darius Durand McGEE, Defendant-Appellant.
Case Date:January 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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553 F.3d 225 (2nd Cir. 2009)

UNITED STATES of America, Appellee,


Darius Durand McGEE, Defendant-Appellant.

Docket No. 08-1619-cr.

United States Court of Appeals, Second Circuit.

January 23, 2009

Argued: Dec. 10, 2008.

Sandra S. Glover, Assistant United States Attorney (Michael J. Gustafson, Assistant United States Attorney, on the brief) for Nora R. Dannehy, Acting United States Attorney, District of Connecticut, New Haven, CT, for Appellee.

Robert J. Sullivan, Westport, CT, for Appellant.

Before: POOLER, RAGGI, and LIVINGSTON, Circuit Judges.


In this decision, we address the narrow question of whether a defendant such as appellant Darius McGee, who at sentencing was designated a career offender but granted a departure so that he was ultimately sentenced based on the crack cocaine (cocaine base) guidelines, is eligible

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for a reduced sentence pursuant to the so-called crack amendments. As we recently discussed in United States v. Williams, 551 F.3d 182, 184 (2d Cir.2009), these amendments came about on November 1, 2007, when the United States Sentencing Commission promulgated Amendment 706, which amended the Drug Quantity Table in United States Sentencing Guidelines Section 2D1.1(c). U.S.S.G. Supp. to App. C, amend. 706 (2008). The effect of Amendment 706 is to provide a two-level reduction in base offense levels for crack cocaine offenses. See id. 1

McGee contends that he is eligible for this two-level reduction because, at sentencing, the district court, though designating him a career offender, see U.S.S.G. § 4B1.1, ultimately based his sentence on the crack cocaine guidelines after downwardly departing based on a finding that the career offender classification overrepresented his criminal history, see U.S.S.G. § 4A1.3(b). Thus, applying the 2001 Sentencing Guidelines, the district court sentenced McGee to 115 months based on a post-departure sentencing range that was calculated as follows: a base offense level of twenty-six (the level corresponding to at least five grams but less than twenty grams of crack cocaine) under U.S.S.G. § 2D1.1(c)(7), minus three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of twenty-three and criminal history category of six, and consequently a sentencing range of ninety-two to 115 months imprisonment. McGee asserts that after applying Amendment 706 as well as the three-level reduction under U.S.S.G. § 3E1.1, his total offense level is now twenty-one and his sentencing range seventy-seven to ninety-six months. The district court rejected this argument. Noting that defendants sentenced as career offenders are unaffected by Amendment 706, the district court agreed with the government that McGee was ineligible for a reduced sentence because his pre-departure range, i.e., his career offender guideline range and not the crack cocaine guideline range, was the " applicable guideline range" affected by Amendment 706.

We have jurisdiction under 28 U.S.C. § 1291, and though recognizing the issue to be a very close one, we hold that McGee is eligible for a reduced sentence, vacate the district court's decision, and remand for reconsideration of McGee's 18 U.S.C. § 3582(c)(2) motion for a reduced sentence.

We review the district court's interpretation of the statute and the Guidelines de novo. See Williams, 551 F.3d 182, 185; United States v. Kerley, 544 F.3d 172, 179 (2d Cir.2008). It is well established that " [a] district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007). One of the limited exceptions to this rule exists when the sentencing range under which the defendant was sentenced is subsequently lowered by the Sentencing Commission. Section 3582(c)(2) states:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994( o ), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are...

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