USA v. Maladecki et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, 	)
)
Plaintiff, 	) 	ORDER DENYING MOTION TO
) 	REDUCE SENTENCE
vs. 	)
) 	Case No. 3:05-cr-10(2)
Kelly James McCracken, 	)
)
Defendant. 	)
Defendant Kelly James McCracken moves for a sentence reduction under 18 U.S.C. §
3582(c)(2) and Part A of Amendment 821 to the United States Sentencing Guidelines. Doc. 885.
The United States opposes the motion. Doc. 890. For the reasons below, the motion is denied.
In 2006, McCracken pleaded guilty to continuing criminal enterprise (“CCE” and count
21), conspiracy to tamper with a witness (count 19), and two counts of use of a firearm during a
drug trafficking crime (counts 6 and 7). Doc. 559. The presentence investigation report calculated
his sentencing range as 262 to 327 months, based on a total offense level of 36 and a criminal
history category IV. He had 7 criminal history points, plus 2 status points under United States
Sentencing Guideline § 4A1.1(d), for a total of 9 criminal history points. Id. Because of the
consecutive 7- and 25-year mandatory minimums on counts 6 and 7, his final sentencing range
was 646 to 711 months. At sentencing, the district court sentenced him to 321 months in prison,
which included 240 months on the CCE count and a concurrent 120 months on the conspiracy
count, with a consecutive 54 months on count 6 and 27 months on count 7 to be served
consecutively to the sentence on count 6. Doc. 559.
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Under 18 U.S.C. § 3582(c)(2):
in the case of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
This exception to the general rule that a court may not modify a term of imprisonment once it has
been imposed “represents a congressional act of lenity intended to give prisoners the benefit of
later enacted adjustments to the judgments reflected in the Guidelines.” Dillon v. United States,
560 U.S. 817, 828 (2010). But the exception is limited; it “does not authorize a resentencing.” Id.
at 831. “It permits a sentence reduction within the narrow bounds established by the Commission.”
Id. In deciding whether to reduce a sentence based on a retroactive amendment to the United States
Sentencing Guidelines under 18 U.S.C. § 3582(c)(2), a court must first consider the scope of the
reduction authorized by the amendment and then consider whether such a reduction is warranted
under 18 U.S.C. § 3553(a). Dillon, 560 U.S. at 826.
McCracken generally seeks a sentence reduction under Part A of Amendment 821. But
Part A of Amendment 821 provides no relief because it does not lower his sentencing range. This
portion of Amendment 821 lowers the number of “status points” received under United States
Sentencing Guideline § 4A1.1 for individuals who commit their offense while under a criminal
justice sentence. Applying the new provision to McCracken, he would receive 1 status point
instead of 2, reducing his total criminal history points from 9 to 8. But even with 8 criminal history
points, McCracken remains squarely within criminal history category IV. So, his sentencing range
is unaffected by the status point reduction. Because his sentencing range was not “subsequently .
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. . lowered by the Sentencing Commission,” Amendment 821 does not authorize a sentence
reduction.
After extensive review the entire record and the relevant legal authority, McCracken’s
motion to reduce sentence (Doc. 885) is DENIED.
IT IS SO ORDERED.
Dated this 14th day of February, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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