United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
MODIFICATION OR REDUCTION OF SENTENCE PURSUANT TO 18 U.S.C.
H. CLELAND UNITED STATES DISTRICT JUDGE.
Barry Cashin moves to reduce his sentence based on a lowered
guideline range for drug offenses in the United States
Sentencing Guidelines. (ECF No. 148.) The matter has been
fully briefed. (ECF Nos. 155, 156, 157.) For the reasons
provided below, Defendant's motion is denied.
pleaded guilty to conspiracy to distribute a controlled
substance in violation of 21 U.S.C. § 846 and 21 U.S.C.
§ 841(a)(1), with a judgment entered on March 8, 1991.
Defendant was sentenced to 372 months (thirty-one years)
imprisonment. There was a plea agreement, but it was not made
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
(ECF No. 156, PageID.78-79; ECF No. 157, PageID.85.) Thus,
the court was not required to impose an agreed upon sentence
or accept an agreed upon sentencing range. (ECF No. 155-1,
PageID.67.) The court determined that Defendant's offense
level was forty and his criminal history category was III.
The result was an imprisonment range of 360 months to life.
Defendant's indictment, but before sentencing, facts came
to light that Defendant was attempting to undermine the
prosecution; Defendant recruited his cellmate and brother to
kill an FBI agent that was assigned to his case. Defendant
further conspired to intimidate his co-conspirators to keep
them from testifying in potentially inculpatory ways. On
March 28, 1991, a few weeks after his controlled substance
sentencing, Defendant was convicted of conspiracy and attempt
to intimidate witnesses. 18 U.S.C. § 371; 18 U.S.C.
§ 1512(b). The charge of solicitation to commit a crime
of violence, relating to his alleged attempts to murder an
FBI agent, resulted in a hung jury. 18 U.S.C. § 373. For
the crimes he was convicted of, Defendant was sentenced to
170 months imprisonment. The sentence ran consecutively to
Defendant's controlled substance sentence, resulting in a
total of 542 months imprisonment.
2014, Amendment 782 of the U.S. Sentencing Guidelines lowered
the offense level for all drug offenses, including for
Defendant's. Compare U.S.S.G. § 2D1.1(6)
(U.S. Sentencing Comm'n 1990) (“Level 32”),
with U.S.S.G. § 2D1.1(c)(5) (U.S. Sentencing
Comm'n 2018) (“Level 30”). Now, with
Defendant's base offense level lowered two points, his
imprisonment range would be 292 to 365 months. See
U.S.S.G. Sentencing Table.
sentencing for the offenses related to his intimidation of
witnesses is not subject to change at this point. Defendant
was sentenced based on an offense level of thirty-two, to
which Amendment 782 does not apply and subsequent amendments
to his original U.S.S.G. § 1B1.10 report do not
affect. Defendant does not contest this point.
government's argument to the contrary notwithstanding,
the change to Defendant's sentencing range does allow the
court to modify his sentence for his controlled substance
offense. 18 U.S.C. § 3582(c)(2) grants authority to
reduce a term of imprisonment if the defendant's sentence
was imposed “based on a sentencing range that
has subsequently been lowered.” 18 U.S.C. §
3582(c)(2) (emphasis added). A sentencing decision is almost
always “based on” the guideline range.
“Indeed, the Guidelines are ‘the starting point
for every sentencing calculation in the federal system. Even
if the sentencing judge sees a reason to vary from the
guidelines, if the judge uses the sentencing range as the
beginning point to explain the decision to deviate from it,
then the Guidelines are in a real sense the basis for the
sentence.'” Hughes v. United States, 138
S.Ct. 1765, 1775 (2018) (quoting Peugh v. United
States, 569 U.S. 530, 542, 133 S.Ct. 2072 (2013)). In
the Sixth Circuit, “[i]n determining whether a sentence
is ‘based on' a subsequently lowered guideline
range in a plain-meaning sense of the words, we must consider
whether the original sentence was, in fact,
‘based on' such a range; that is, we look to what
the district court actually said and did at the original
sentencing.” United States v. Hameed, 614 F.3d
259, 264 (6th Cir. 2010) (citations removed).
at what was “actually said and [done], ” the
court's sentence was “based on”
Defendant's guideline range. Hameed, 614 F.3d at
264. The Statement of Reasons in Defendant's judgment
lays out the guideline range determined by the court.
Further, in an attachment to the Statement, the court
explained that “the mid-point of the guideline range is
appropriate” for Defendant's sentence. In the
process of sentencing, the court mentioned that it had the
ability to sentence Defendant to life in prison, a direct
reference to the guideline range. (ECF No. 155, PageID.56.)
The court “start[ed]” from, relied on, and
referred to Defendant's guideline range at sentencing.
Hughes, 138 S.Ct. at 1775. This is enough to
conclude that Defendant's sentence was “based
on” his guideline range.
government uses the Supreme Court decision Freeman v.
United States, 564 U.S. 522, 131 S.Ct. 2685 (2011) to
argue that a sentence is not “based on” a
guideline range when, as here, a defendant signs a plea
agreement that does not mention a guideline range. This
reliance on Freeman is misplaced. In
Freeman, the Supreme Court found that courts can
look only to the plea agreement in determining whether a
sentence was “based on” a guideline range when
that sentence was imposed directly from the plea agreement
under Rule 11(c)(1)(C). Freeman, 564 U.S. at 534
(Sotomayor, J., concurring). Under Rule 11(c)(1)(C),
“[t]he court may only accept or reject the agreement,
and if it chooses to accept it, at sentencing the court may
only impose the term of imprisonment the agreement calls for;
the court may not change its terms.” Freeman,
564 U.S. at 535. If a court may only accept wholesale the
range a plea agreement calls for, it follows that the court
should focus on the plea agreement alone in deciding whether
the sentence was “based on” a guideline range. In
line with this reasoning, the Sixth Circuit has limited
Freeman to “the Rule 11(c)(1)(C)
context.” United States v. Garret, 758 F.3d
749, 755 (6th Cir. 2014); see also United States v.
McNeese, 819 F.3d 922 (6th Cir. 2016) (discussing the
Freeman only in application to Rule 11(c)(1)(C)
agreements). Here, Defendant was not sentenced according to
the terms of a Rule 11(c)(1)(C) plea agreement. (ECF No. 156,
PageID.78-79; ECF No. 157, PageID.85.) Under Rule
11(c)(1)(B), the court, not the parties, determined the
sentencing range. Freeman is inapplicable.
the court could, the court nonetheless will not exercise its
authority to reduce Defendant's sentence. When
considering a sentence reduction under 18 U.S.C. §
3582(c)(2), the court is required to consult the U.S.
Sentencing Commission's policy statement and the
sentencing factors laid out in 18 U.S.C. § 3553(a).
Dillon v. United States, 560 U.S. 817, 827, 130
S.Ct. 2683 (2010); U.S.S.G. § 1B1.10.
the applicable policy statement from the Sentencing
Commission is provided for in U.S.S.G. § 1B1.10.
Dillon, 560 U.S. at 827; United States v.
Horn, 612 F.3d 524, 527 (6th Cir. 2010); United
States v. Payne, 687 Fed. App'x 447, 447-48 (6th
Cir. 2017). Defendant's conviction passes §
1B1.10's requirements. The amendment at issue has the
effect of lowering Defendant's applicable guideline
range, as required under § 1B1.10(a)(1). It also falls
in the “covered amendments” list. U.S.S.G. §
1B1.10(a)(2), (d) (“782”).
the court must consider sentencing factors, including the
nature and circumstances of the offense, the history and
characteristics of the defendant, the need to reflect the
seriousness of the offense, and the need to protect the
public from further crimes of the defendant. 18 U.S.C. §
3553(a)(1), (2)(A), (2)(C). Here, Defendant was involved in a
long-running conspiracy with a significant number of
participants. He served in a leadership capacity, helping to
distribute at least 1, 000 kilograms of marijuana. Most
disturbingly, Defendant organized with co-conspirators to
threaten witnesses. He was indicted in a murder plot to kill
one of the law enforcement agents assigned to his case.
Defendant's serious and deeply threatening behavior,
combined with his proven skills at organizing complex