United States v. Vickie Passmore
503 F. App'x 340
6th Cir.2012Background
- Passmore, a federal prisoner, appealed a district court denial of her 18 U.S.C. § 3582(c)(2) motion for a sentence reduction.
- She pleaded guilty on January 19, 2011, to conspiracy to possess with intent to distribute and distribution of cocaine base under 21 U.S.C. § 846 and § 841(b)(1)(A).
- Preceding sentencing, PSR calculated offense level 23, criminal history IV, yielding a advisory range of 70–87 months, but a mandatory minimum of 120 months adjusted the range to 120 months.
- Due to cooperation, the district court imposed 18 months imprisonment, followed by 5 years of supervised release, on July 6, 2011.
- Fair Sentencing Act of 2010 amended base cocaine offenses; USSG Amend. 750 realigned levels, retroactive Amend. 759, but the amendments were not retroactively applied to Passmore’s calculation at issue.
- The district court concluded Passmore could be eligible for a reduction to 60 months minimum but left advisory range unchanged and reduced the sentence to 10 months after reconsideration; the government challenged jurisdiction and authority under § 3582(c)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3582(c)(2) authorizes a reduction when Congress lowered a mandatory minimum but did not retroactively amend the guidelines. | Passmore argued the change in mandatory minimum affected her guidelines range and permitted relief. | Passmore contends the change is a retroactive guideline amendment; government argues no authority absent retroactive lower of the sentencing range. | No authority under § 3582(c)(2); no retroactive amendment lowered her range. |
| Whether Dorsey retroactively lowers mandatory minimums for offenders sentenced after the Act's effective date but for pre-August 3, 2010 offenses. | Passmore should receive relief under the Act’s lower minimums. | Since her sentencing occurred after the Act’s effective date but the range was not subsequently lowered, relief is unavailable. | Passmore cannot obtain relief under § 3582(c)(2) because her sentencing range has not subsequently been lowered. |
Key Cases Cited
- United States v. Payton, 617 F.3d 911 (6th Cir. 2010) (abuse-of-discretion review for § 3582(c)(2) matters)
- United States v. Curry, 606 F.3d 323 (6th Cir. 2010) (authority questions under § 3582(c)(2))
- Freeman v. United States, 131 S. Ct. 2685 (2011) (apply retroactive amendments; 1B1.10 guidance)
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (lower mandatory minimums apply to pre-Act offenses sentenced after Act)