Tenth Acknowledges the Result is Unfair, But Nonetheless Affirms Denial of 3582(c)(2) Relief to Crack Cocaine Defendant

By Shari Allison
Federal Public Defender Office, District of New Mexico
Sep 10, 2014

United States v. White, 2014 WL 4290585 (Kansas) (Published). In White, the court affirmed the district court’s denial of White’s section 3582(c) motion while criticizing counsel for misunderstanding the Supreme Court’s decision in Freeman v. United States, 131 S.Ct. 2685. In his concurrence, Judge Hartz wasn’t so sure that criticism was fair or that the pre-Freeman cases, Darton and Dryden, upon which the majority based its opinion are still valid.

White appealed the district court’s denial of his request under § 3582(c) to reduce his sentence because it was based on the abrogated crack cocaine guideline. The government dismissed 15 of the 16 charges against White in exchange for his guilty plea to the §924(c) charge (possession of a firearm in furtherance of a drug trafficking crime). The sentencing court wasn’t happy with a mere five year mandatory prison term for that offense, so it directed the probation officer to calculate the sentencing guidelines for the underlying drug charge [even though it had been dismissed by the government.] The imprisonment range for that offense was 70-87 months and the court tacked 87 months onto the 60 month § 924(c) term. White said he was entitled to a reduction under §3582(c) because his sentence was “based on” the abrogated crack guidelines. He argued that like Freeman, the judge used the “sentencing range as the beginning point to explain the decision to deviate from it . . .” Therefore, he was eligible for relief because his sentence was based on sentencing guidelines that had been subsequently lowered by the Sentencing Commission.

The majority admitted that White’s 60 month mandatory sentence was “based” on §2K2.4 of the guidelines. It also conceded that the court’s upward departure was based on the abrogated crack guidelines. But then the court found that the part of the sentence about which White complains - the departure -“existed apart from the applicable range.” Consequently, it ruled he wasn’t eligible for relief. The majority quotes from Freeman ostensibly to support its ruling, but that case validates White’s position: “Even where the judge varies from the recommended range, if the judge uses the sentencing range as the beginning point [here §2K2.4] to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.” 131 S.Ct. at 2692. White's sentence was indeed based on the guidelines. Sadly, the majority and Judge Hartz acknowledge the result is unfair to White. However, the remedy is in the hands of Congress or the Commission.