United States v. Flemming, No. 12-1118 (3d Cir. 2013)
Annotate this CaseFlemming, convicted in 2004 of possessing with intent to distribute crack cocaine, 21 U.S.C. 841(a), 841(b)(1)(C), and two firearm counts, had a Guidelines range of 92 to 115 months’ imprisonment. Because he had two prior controlled substances convictions, he was classified as a career offender under U.S.S.G. 4B1.1(a), so that his Guidelines range was 262 to 327 months. The court granted a downward departure under U.S.S.G. 4A1.3, based on “reliable information . . . that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes” and sentenced Flemming to 175 months in prison (115 months plus a 60 month term for one of the firearm convictions). The Third Circuit affirmed. In 2007, the Sentencing Commission issued Amendment 706, lowering by two the base offense levels for most crack-cocaine offenses. It later made the amendment retroactive. Flemming moved for a reduction of sentence under 18 U.S.C. 3582(c). The district court denied the motion. The Third Circuit affirmed. Individuals who were designated as career offenders under U.S.S.G. 4B1.1 and 3 and were granted a downward departure under 4A1.3 are not eligible for resentencing.
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