USA v. Busch et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
UNITED STATES OF AMERICA
Plaintiff,
DECISION AND ORDER
v. 	09-CR-331-A
DOUGLAS LAWRENCE HARVILLE,
Defendant.
______________________________________
Before the Court is Defendant Douglas Lawrence Harville's motion to modify
his sentence pursuant to 18 U.S.C. Section 3582(c)(2). (Dkt. No. 2421). The
Government opposed (Dkt. No. 2440), and Defendant replied (Dkt No. 2446). For
the reasons set forth below, the motion is DENIED.
I. BACKGROUND
On or about January 13, 2012, Defendant pleaded guilty to participation in a
RICO conspiracy, in violation of 18 U.S.C. § 1962(d). (Dkt. Nos. 392, 399). In his
plea agreement, Defendant admitted to being a long-standing member of the 10th
Street Gang, which operated in the west side of the City of Buffalo, distributing
significant quantities of cocaine, cocaine base, marijuana, and other controlled
substances. Gang members routinely used violence and threats of violence to
protect their territory from rival gangs and to retaliate against people who committed
acts of violence against them, and as part of his plea agreement, defendant
admitted that he personally planned and participated in a shooting which resulted in
the death of two such rival gang members. (Dkt. No. 392, ¶5).
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The plea agreement expressed the parties’ understanding that with a total
offense level of 42 and criminal history category of I, Defendant faced a sentencing
range of imprisonment of 360 moths to life. (Dkt. No. 392, ¶16). The agreement
further provided that in the event the Defendant provided substantial assistance, “the
government will move the Court at sentencing to depart downward five (5) levels
from the Guidelines as provided for in Guidelines § 5K1.1, which, if granted by the
Court, would result in a total offense level of 37 and a sentencing range for
imprisonment of 210 to 262 months.” (Dkt. No. 392, ¶30).
The Presentence Investigation Report calculated the Defendant’s Criminal
History Category as IV rather than I, and determined that with a total offense level of
42 and criminal history category of IV, Defendant’s guidelines range for
imprisonment was 360 months to life. PSR ¶104. Prior to sentencing, the
government, in support of its request for a downward departure based upon
Defendant’s substantial assistance, filed an affidavit which requested that:
in the event the Court determines that the defendant is a Criminal History
Category IV, as set forth in the PSR, the government respectfully requests the
Court grant the appropriate departure to reach an advisory guideline range of
210 to 262 months because the government believes the defendant's
cooperation should result in an advisory range of 210 to 262 months for his
role in the double-murders on April 17, 2006, and the RICO Conspiracy in
which Harville participated.
(Dkt. No. 2018, ¶3 [filed under seal]).
On June 20, 2016, the Court held a sentencing proceeding and determined,
inter alia, that Defendant’s criminal history category was properly calculated at
Category IV, and after granting the government’s motion for a reduction of sentence
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based upon substantial assistance, the Court sentenced Defendant principally to a
term of imprisonment of 210 months.
On November 7, 2023, Defendant filed the instant motion, pursuant to 18
U.S.C. § 3582(c)(2), seeking a reduction of his sentence pursuant to Amendment
821 of the Sentencing Guidelines. For the reasons which follow, defendant’s
request is denied.
As relevant here, Part A of Amendment 821 altered Guidelines § 4A1.1(e), by
reducing from two (2) points to one (1) point the upward adjustment for offenders
who committed the instant offense while under any criminal sentence, and by
limiting this adjustment to defendants who received seven (7) or more criminal
history points. 	The parties agree that as a result of the retroactive application of this
Amendment,1 Defendant’s Criminal History Category is properly reduced from IV to
III. With a total offense level of 42 and a criminal history Category of III, Defendant’s
guidelines range for imprisonment, prior to any reduction for substantial assistance
motion, remains 360 months to life.
The Defendant's current projected release date is August 20, 2024.
II. APPLICABLE LAW
The process for considering a Section 3582(c) motion is well established. As
the Supreme Court has made clear, Section 3582(c) “does not authorize a ...
resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 825 (2010). Rather,
it provides only for the possibility of “a limited adjustment to an otherwise final
1 Amendment 821 applies retroactively effective February 1, 2024. See U.S.S.G. §§ 1B1.10(d)
and 1B1.10(e)(1).
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sentence” following a “two-step approach.” Id. at 826-27.
“At step one, § 3582(c)(2) requires the court to follow the Commission's
instructions ... to determine the prisoner's eligibility for a sentence modification and
the extent of the reduction authorized.” Id. at 827. As to whether the defendant is
eligible for any reduction, “§ 1B1.10(b)(1) requires the court to begin by ‘determining
the amended guideline range that would have been applicable to the defendant’ had
the relevant amendment been in effect at the time of the initial sentencing.” Id.
(quoting U.S.S.G. § 1B1.10(b)(1) (alteration omitted)). If the amendment would not
have altered the defendant's sentencing range even if it had been applicable at the
time of the defendant's sentencing, then the defendant is not eligible for a
sentencing reduction. See U.S.S.G. § 1B1.10(a)(2)(B).
“A reduction in the defendant's term of imprisonment is not consistent with this
policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if ...
[the retroactive amendment] does not have the effect of lowering the defendant's
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). See United States v.
McGee, 553 F.3d 225, 227 (2d Cir. 2009). The Guidelines themselves define
“applicable guideline range” as “the guideline range that corresponds to the offense
level and criminal history category determined pursuant to § 1B1.1(a), which is
determined before consideration of any departure provision in the Guidelines
Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011) (emphasis added);
U.S.S.G., app. C., amend. 759 (2011); see, United States v. Steele, 714 F.3d 751,
754 (2d Cir. 2013)(“[t]he ‘applicable’ amended Guidelines range under §
1B1.10(b)(1) therefore does not incorporate any Guidelines ‘departures.’”).
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Here, Amendment 821 “does not have the effect of lowering the defendant's
applicable guideline range.” See U.S.S.G. § 1B1.10(a)(2)(B). Although the parties
agree that the retroactive application of Amendment 821 will result in his Criminal
History Category being reduced from IV to III, with a total offense level of 42, his
“applicable guideline range” nevertheless remains 360 to life. Consequently,
defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). See,
United States v. Derry, 824 F.3d 299, 307 (2d Cir. 2016)(where defendant’s
sentencing range “has not ‘subsequently been lowered by’ [an] Amendment” to the
Guidelines, Defendant “is ineligible for a sentence modification.”).
Even if this Court were to conclude that Defendant were eligible for such a
reduction and to proceed to step two of the Dillon inquiry, see, Dillon v. United
States, 560 U.S. at 827, the Court, upon consideration of the factors set forth in 18
U.S.C § 3553(a), would under all of the circumstances presented here decline to
exercise its discretion further to reduce Defendant’s sentence. See United States v.
Mock, 612 F.3d 133, 137 (2d Cir. 2010)(“[i] f, and only if, a defendant is eligible for a
reduction in sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, then the
second step of the analytical framework set forth in Dillon requires the district court
‘to consider any applicable § 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the policies relevant at step one
is warranted in whole or in part under the particular circumstances of the case.’”).
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III. 	CONCLUSION
Accordingly, Defendant’s motion to modify his sentence pursuant to 18 U.S.C.
Section 3582(c)(2) [Dkt. No. 2421], is DENIED, and such motion is DISMISSED.
IT IS SO ORDERED.
__s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 9, 2024
Buffalo, New York
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