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Sentence Reduction to be “Based On” Most Recent Sentencing Range Applied to Defendant, Not Original Range in Effect at Initial Sentencing.

In United States v. Derry, No. 15-1829 (June 2, 2016) (RSP, BDP, DAL), the Second Circuit confronted a sentencing issue which has garnered increased attention in light of multiple recent amendments to the U.S. Sentencing Guidelines to reduce the length of prison sentences associated with certain drug offenses:  When a defendant is sentenced under one version of the Guidelines and has his sentence reduced under 18 U.S.C. § 3582(c)(2) when his “sentencing range . . . has been subsequently lowered by the Sentencing Commission,” can he receive yet another reduction based on another subsequent amendment to the Guidelines which results in a lower range than was applied at the original sentencing but has no effect on the range that was applied at resentencing?  The short answer:  no.

The defendant, Leroy Derry, had been convicted of, inter alia, several heroin- and crack cocaine-related felonies as part of his association with the Latin Kings street gang.  In 2009, Derry was sentenced to serve 396 months in prison based on a Guidelines range of 360 months to life.  Two years later, when the United States Sentencing Commission promulgated certain amendments which retroactively reduced the Guidelines range applicable to Derry’s crack cocaine offenses to between 235 and 293 months, the district judge reduced Derry’s sentence from 396 months to 293 months.  Then, in April 2015, Derry moved for another sentence reduction.  This time, he focused on a different set of amendments the effect of which placed Derry’s applicable Guidelines range at between 235 and 293 months; although lower than the range which had applied at Derry’s initial sentencing in 2009, this was the same range that was in effect in 2011 when Derry received his first sentence reduction.  Construing 18 U.S.C. § 3582(c)(2), which governs an application for a reduced sentence based on a retroactive guidelines amendment, the district court accepted the premise that Derry had been “sentenced to a term of imprisonment based on a sentencing range” that was subsequently lowered by the 2015 amendments because it read the word “sentenced” to refer back to the original sentencing proceeding.  Unites States v. Derry, 2015 U.S. Dist. LEXIS 68166, at *4 (D. Conn. May 25, 2015) (quoting § 3582(c)(2)).  But in construing the policy statement to the Guidelines, the district court reasoned that the “guideline range” applicable to Derry was the range applied at his resentencing proceeding and that it had not been “lowered as a result of” the 2015 amendments because the most current range matched the range in effect during Derry’s 2011 resentencing.  Id. at *10 (quoting U.S.S.G. § 1B1.10(a)(1)).

The Second Circuit also rejected Derry’s attempt to take a second bite at the resentencing apple, but it did so on other grounds.  Writing for the panel, Judge Parker rejected Derry’s contention that, even in spite of the 2011 reduction, his current sentence was nonetheless “based on” the 2009 version of the Guidelines.  Derry argued that the term “sentenced” in 18 U.S.C. § 3582(c)(2) refers to the “formal process of ‘sentencing,’ which is distinct from sentence modification.”   Thus, Derry maintained, he was eligible for another sentence reduction because the 2015 amendments lowered the range which had applied during his initial sentencing. 

Although it commended the defendant’s counsel for his “creative” argument, the panel concluded that the “relevant inquiry under § 3582(c)(2) is not when the formal process of ‘sentencing’ occurred, but what term of imprisonment the defendant is serving and what guideline range serves as the basis for that sentence.”  Id. at 10.  The Court reasoned further that when “a district court modifies a term of imprisonment pursuant to § 3582(c)(2), it replaces the previous term of imprisonment with a new one based on the amended guideline range . . . . [i]n other words, as a matter of fact, the old sentence no longer exists, and the only term of imprisonment to which the defendant has been ‘sentenced’ is ‘based on’ the guideline range applied in the modification proceeding.”  Applying these principles, the Court found that Derry’s sentence was “based on” the 2011 sentencing range of 235 to 293 months and concluded that the 2015 amendments did not “subsequently lower” that range.  Accordingly, Derry was ineligible for a further reduction under § 3582(c)(2).

The Derry decision is both important and unsurprising.  It is important because district courts in this and other circuits increasingly have been occupied by these kinds of technical resentencing questions in the wake of several recent amendments to the Guidelines intended to reduce the length of sentences for drug related offenses.  Given the newfound recognition that the Sentencing Guidelines may be unduly harsh in certain categories of cases, it is reasonable to expect that there will be more retroactive amendments.  The Court has now provided guidance on this issue and clarified to district courts that for purposes of a § 3582(c)(2) reduction, the key reference point is the sentence in place after the most recent modification, not at the time of the original proceeding.  The decision is also somewhat unsurprising because several sister circuits have reached the same conclusion, which seems to be the most logical interpretation of the statutory language.  See United States v. Tellis, 748 F.3d 1305, 1307 (11th Cir. 2014); United States v. Banks, 770 F.3d 346, 348 (5th Cir. 2014 (per curiam); United States v. Wormley, 471 F. App’x 837, 838 (10th Cir. 2012).

-By Clinton W. Morrison and Harry Sandick