Eleventh Circuit Denies Sentence Reduction Request Based on Crack Guidelines Change – U.S. v. Berry

November 21, 2012 by David S. Seltzer

Last year, in a development that was very exciting for drug crimes defense lawyers, the U.S. Sentencing Guidelines on crack cocaine were changed. Before the change, defendants accused of possession of crack cocaine were sentenced to substantially more time than those accused of pure cocaine possession. Critics of the situation felt that the disparity reflected racial bias, since most crack cocaine defendants are African American and most cocaine defendants are not. The change applied to future prosecutions, but defendants who had been convicted under the old guidelines are permitted to petition for re-sentencing. One such defendant was Gregory Randolph Berry, whose petition was considered by the Eleventh U.S. Circuit Court of Appeals in U.S. v. Berry. The appeals court ultimately upheld Berry’s sentence, but on grounds unrelated to the guidelines change.

Berry was convicted and sentenced to prison in 2002 for crack cocaine possession. In 2010, Congress passed the Fair Sentencing Act, directing the U.S. Sentencing Commission to reduce the area of the sentencing guidelines for crack cocaine possession that apply to the amounts of the drug. This became Amendment 750 to the Sentencing Guidelines, passed in November of 2011, and later approved for retroactive application. On that basis, Berry moved for a sentence reduction in South Florida district court. His trial was not detailed, but the Eleventh noted that the sentencing court assigned him an offense level of 37 and a criminal history category of VI; both of these metrics help calculate a range of possible sentences. The motion for a sentence reduction was denied in district court.

The Eleventh Circuit also denied it on appeal, saying Berry’s sentence was derived from his prior convictions and status as a career offender. To qualify for a sentence reduction, defendants must have not only had their base offense level lowered, but also had their final sentencing range lowered. If another guideline or law keeps the sentence range the same, the court said, no reduction is authorized. The Eleventh found that this was true in Berry’s case because his offense level and guidelines range were not based on the drug quantity tables that have been amended. Rather, Berry was subject to a statutory mandatory minimum life sentence because he had two prior felony drug convictions. His sentence was also affected by his status as a career offender. Thus, the court said, Amendment 750 was irrelevant to Berry’s sentence range and he did not qualify for a sentence reduction. In so ruling, the Eleventh joined multiple other circuits.

This case doesn’t go into details about the underlying offense, but it would be interesting to know whether Berry’s prior felony drug crimes were related to crack cocaine. This would help make it clear whether the court’s ruling was within the spirit of the Fair Sentencing Act as well as its letter. Many times, people who have prior drug convictions are fighting an addiction problem; a prior drug felony could also be as an accessory or in another situation that does not make the defendant a menace to society. Once these situations are enshrined by convictions, it’s difficult for a criminal defense attorney to get a court to consider mitigating details; the court simply looks at the conviction record. That’s why it’s so important for defendants to get an experienced attorney’s help preventing a conviction in the first place.

If you’re charged with a drug crime in Florida, you could face years in prison and the loss of your assets. That’s why you should call Seltzer Law, P.A., right away to discuss your situation and your legal options. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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