United States v. Hogan
2013 U.S. App. LEXIS 13690
| 1st Cir. | 2013Background
- Hogan was convicted in 2001 of conspiracy to possess with intent to distribute and distribution of cocaine base and possession of cocaine base, with a 2002 sentence of 262 months and five years' supervised release after CHC VI was downward-departed to CHC III.
- Initial sentence combined a 34 base offense level with a victim enhancement and leadership increase, plus a two-level down-ward adjustment for acceptance of responsibility, yielding TOL 37.
- Six years later, Hogan moved for a § 3582(c)(2) reduction based on 2007 amendments reducing crack-cocaine base offense levels; the district court applied a CHC III departure and reduced to 210 months.
- In 2011, Amendments 750 and 759 ret- roactively lowered crack-cocaine penalties and modified § 1B1.10, including its commentary, creating new constraints on reductions for below-guideline sentences.
- Hogan again sought relief under § 3582(c)(2); the district court denied, applying § 1B1.10(b)(2) to forbid a further reduction because his amended range (235–293 months) still exceeded his 210-month sentence.
- The First Circuit affirmed, holding that § 1B1.10(b)(2) prohibits reducing a below-guideline sentence unless the original departure was for substantial assistance, and Application Note 1 requires determining the range before considering departures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Application Note 1 binds the court to exclude prior CHC departures when calculating the amended range | Hogan contends Application Note 1 is not binding because it conflicts with the pre-2011 CHC departure. | The government argues Application Note 1 governs, and departures taken earlier do not affect the amended range. | Application Note 1 binding; departures pre-range calculation cannot be used. |
| Whether § 1B1.10(b)(2) precludes a below-guideline reduction when original sentence was below the amended range but not due to substantial assistance | Hogan argues CHC departure should permit a comparable reduction below the amended range. | The government and Hogan agree the court must follow § 1B1.10(b)(2); in Hogan's case the original departure was not for substantial assistance. | § 1B1.10(b)(2) bars below-guideline reductions absent substantial-assistance departure; Hogan not eligible. |
Key Cases Cited
- United States v. Berberena, 694 F.3d 514 (3d Cir. 2012) (agrees § 1B1.10(b)(2) bars reductions absent substantial assistance)
- United States v. Anderson, 686 F.3d 585 (8th Cir. 2012) (concurs that reductions below amended range require substantial-assistance basis)
- United States v. Glover, 686 F.3d 1203 (11th Cir. 2012) (supports same interpretation of § 1B1.10(b)(2))
- United States v. Colon, 707 F.3d 1255 (11th Cir. 2013) (extends the above principles to 1B1.10(b)(2) reductions)
- United States v. Steele, 714 F.3d 751 (2d Cir. 2013) (clarifies application of departures and note binding nature)