Guideline Sentencing: An Outline of Appellate Case Law on ...

Section I: General Application Principles
lence, but not to extent that amendment would make unlawful possession never a
crime <strong>of</strong> violence) [5#5].
5. Retroactive Amendments Under §1B1.10, 18 U.S.C.
§3582(c)(2)
The First Circuit held, and most circuits agree, that where a defendant’s guideline
level is lowered after sentencing because <strong>of</strong> an amendment listed in §1B1.10(c) (formerly
§1B1.10(d)), the defendant is not necessarily entitled to a reduction in <strong>of</strong>fense
level, but is entitled to have the sentence reviewed for discretionary reduction
under §1B1.10(a). U.S. v. Connell, 960 F.2d 191, 197 (1st Cir. 1992) [4#19]. Accord
U.S. v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997) (“district court has the discretion
to deny an [18 U.S.C. §] 3582(c)(2) motion”); U.S. v. Turner, 59 F.3d 481, 483 (4th
Cir. 1995) (“district courts have discretion to apply Amendment 488 retroactively
to reduce sentences previously imposed”); U.S. v. Vazquez, 53 F.3d 1216, 1228 (11th
Cir. 1995); U.S. v. Telman, 28 F.3d 94, 96 (10th Cir. 1994) (affirmed: under
§1B1.10(a) “a reduction is not mandatory but is instead committed to the sound
discretion <strong>of</strong> the trial court”) [6#15]; U.S. v. Marcello, 13 F.3d 752, 758 (3d Cir.
1994); U.S. v. Coohey, 11 F.3d 97, 101 (8th Cir. 1993); U.S. v. Wales, 977 F.2d 1323,
1327–28 (9th Cir. 1992). Cf. U.S. v. Parks, 951 F.2d 634, 635–36 (5th Cir. 1992)
(under facts <strong>of</strong> case, the amendment listed in §1B1.10(d) (now (c)) “should be applied
retroactively”) [4#19]. See also the commentary added to §1B1.10 in Nov.
1997 at Application Note 3 (“the sentencing court has the discretion to determine
whether, and to what extent, to reduce a term <strong>of</strong> imprisonment under this section”)
and the fourth paragraph <strong>of</strong> the Background (“The authorization <strong>of</strong> such a discretionary
reduction . . . does not entitle a defendant to a reduced term <strong>of</strong> imprisonment
as a matter <strong>of</strong> right.”). See also the cases in section I.E.6. Departures.
In determining whether to reduce a sentence under 18 U.S.C. §3582(c)(2), a court
is instructed by §1B1.10(b) to “consider the term <strong>of</strong> imprisonment that it would
have imposed had the amendment(s) to the guidelines listed in subsection (c) been
in effect at the time the defendant was sentenced.” Application Note 2 further states
that “the court shall substitute only the amendments listed in subsection (c) for the
corresponding guideline provisions that were applied when the defendant was sentenced.
All other guideline application decisions remain unaffected.” In applying
§1B1.10, the Eighth Circuit held that the language <strong>of</strong> the guideline supported its
finding that the sentencing court should not have revisited the number <strong>of</strong> marijuana
plants used in the original sentencing when applying a retroactive amendment:
“We think it implicit in this directive that the district court is to leave all <strong>of</strong> its
previous factual decisions intact when deciding whether to apply a guideline retroactively.”
However, it rejected defendant’s contention that Note 2 means a district
court cannot reconsider factual decisions, concluding that the note refers to “decisions
with respect to what other guidelines are applicable and to their meaning, not
to prior factual findings.” U.S. v. Adams, 104 F.3d 1028, 1030–31 (8th Cir. 1997)
[9#4]. See also U.S. v. Wyatt, 115 F.3d 606, 608–10 (8th Cir. 1997) (specifying two-
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