Opinion
No. 5:09-CR-2G-1-F
09-04-2012
UNITED STATES OF AMERICA, v. SIRONDA LAVYREE SANDERS, Defendant.
ORDER
This matter is before the court on Sironda Lavyree Sanders' Motion to Reduce Sentence Pursuant to Dorsey v. United States, and the Fair Sentencing Act of 2010 [DE-35], and "Motion for Reconsideration Reduction, 18 U.S.C. § 3742(e) Post-Sentencing Rehabilitation Programming" [DE-36]. Ms. Sanders relates that she was sentenced on June 7, 2010, to a term of 120 months upon her conviction pursuant to 21 U.S.C. § 846. She contends that the Supreme Court's opinion in Dorsey v. United States, ____ U.S. ____, 132 S. Ct. 2321 (2012), entitles her to be resentenced in order to alleviate the crack/powder disparity recognized by the Court, the United States Sentencing Commission, and by Congress. Citing Dorsey, Sanders argues that "criminal defendants who committed the [crack cocaine] offense before August 3, 2010 [the date of enactment of the Fair Sentencing Act, 124 Stat. 2372 (2010) ("FSA")], and sentenced before that date" may be resentenced using the lower penalties of the FSA. Moreover, she contends, both as a second ground for relief in her Motion to Reduce [DE-35] and as grounds for her Motion for Reconsideration [DE-36], that her post-sentencing conduct should be taken into consideration in imposing the lower sentence, relying on Pepper v. United States, ____ U.S. ____. 131 S. Ct. 1229 (2011). She lists several of her accomplishments in educational and vocational training during her incarceration.
Specifically, Pepper held that, when a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's post-sentencing rehabilitation, which may, in appropriate cases, support a downward variance from the advisory Sentencing Guidelines. See Pepper, 131 S. Ct. at 1241-42; see also United States v. Susi, 674 F.3d 278, 284 (4th Cir. 2012) (explaining that in Pepper. "[t]he Supreme Court held that where an appellate court sets aside a defendant's 'entire sentence and remand[s] for a de novo resentencing' pursuant to a general mandate, the district court on resentencing is not bound by its prior consideration of the case.") (quoting Pepper. 131 S. Ct. at 1250-51).
Ms. Sanders' reading of the Dorsey opinion, unfortunately, is not entirely correct. To resolve a circuit split following the enactment by Congress of the Fair Sentencing Act, and the promulgation by the Sentencing Commission of the emergency crack Guidelines amendment, the Supreme Court determined that persons who committed federal drug offenses involving crack cocaine before August 3, 2010, but who were sentenced any time after that date, should be sentenced under the more lenient provisions of the FSA. Ms. Sanders both committed her crack offense and was sentenced before August 3, 2010. Dorsey, without more, does not assist her. Nor does the Supreme Court's approval of post-sentencing rehabilitation as an appropriate consideration under 18 U.S.C. § 3553(a) entitle her to a new sentencing hearing.
"The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on November 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent version of those Guidelines amendments took effect on November 1, 2011. See 76 id, at 24960 (2011)." Dorsey, 132 S. Ct. at 2329.
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If forsome other reason Ms. Sanders becomes eligible to be re-sentenced, then the court will apply the FSA in re-calculating the applicable sentence and will take into consideration Ms. Sanders' post-conviction rehabilitation efforts. However, neither the Dorsey ruling nor her "post-sentencing rehabilitation" entitles Ms. Sanders to be resentenced.
For the foregoing reasons, Ms. Sanders' Motion to Reduce [DE-35] and Motion for Reconsideration [DE-36] are DENIED.
SO ORDERED.
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JAMES C. FOX
Senior United States District Judge