Eleventh Circuit Court of Appeals - Published Opinions

Monday, February 11, 2013

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).

Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.

The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.

The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.

The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.