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Man May Get 5 Months Off Sentence; Missed FSA Cutoff by Weeks

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By William Peacock, Esq. on October 22, 2013 3:55 PM

We get it: crack sentencing was a bit draconian. In order to address this disparity between crack and powder cocaine sentences, which disproportionately affected black men, two major remedies were employed: the Fair Sentencing Act and Amendment 750 to the Sentencing Guidelines.

Nathaniel Hargrove argues that both apply here. He faced a mandatory minimum of 120 months, and a sentence of 120 to 125 months based on the drug tables and his prior felony conviction, but the court chose to depart upward, under U.S.S.G. § 4A1.3 to 240 months. Will he be the beneficiary of the twin sentencing reforms?

18 U.S.C. § 3582(c)(2): Good for Sentencing Guideline Changes

A mandatory minimum applied, as did the drug tables. Amendment 750 eliminated those drug tables, which necessitates a reexamination of his sentence, as amendments to the sentencing guidelines are exactly what § 3582(c)(2) contemplates: the Commission makes a change, and the prisoner petitions for a revision to his sentence.

Unfortunately for him, that pesky mandatory minimum for having a prior felony still applies, setting his new mandatory minimum (and "range") at 120 months, instead of the former guideline of 120 to 125 months. The court noted that it was not saying that a reduction was mandatory from the already upward-departed sentence of 240 months -- only that the lower court has the power to (and must at least consider it).

FSA Not Retroactive: Worst. Timing. Ever.

This issue surprisingly barely made this issue a footnote. While some courts are struggling mightily with whether the FSA's elimination of harsh mandatory minimums should be retroactive, the Eleventh Circuit has already made up its mind: no. It stated that the FSA only applies to defendants sentenced after August 3, 2010. Hargrove was sentenced on June 29, 2010.

For those counting, that's one month and four days before the cutoff.

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