United States v. Doe, No. xx-xxxx (6th Cir. 2013)

In 2006, Defendant pleaded guilty to two counts of distribution of cocaine base, 21 U.S.C. 841(a)(1); the plea agreement stated that his offense involved 109 grams of cocaine base and that the parties would recommend a sentence within the range in the advisory Sentencing Guidelines. The district court accepted the plea. Defendant was subject to a statutory minimum sentence of 240 months of imprisonment because the prosecution moved for a downward departure for Defendant’s substantial assistance to its investigation. The district court granted further reductions for acceptance of responsibility and timely indication of intent to plead guilty, yielding an advisory range of 130 to 162 months. The court imposed a sentence of 130 months. Four years later, the Fair Sentencing Act amended the cocaine base sentencing statute (21 U.S.C. 841(b)(1)). The district court found Defendant ineligible to have his sentence reconsidered. The Sixth Circuit vacated, to “give effect to Congress’s unambiguously expressed intent that the amended Guidelines achieve consistency.” Plugging the new statutory minimums and amended Guidelines into Defendant’s original sentencing formula would yield a sentence of 70 months. The government petitioned for rehearing en banc and, while the motion was pending, the court dismissed the appeal.