United States District Court, W.D. North Carolina, Statesville Division
KENNETH D. BELL UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon the Government's
Motion for Reconsideration of Sentence filed on August 5,
2019 (Doc. No. 118). The Defendant responded on August 7,
2019 (Doc. No. 119).
22, 2019 Defendant filed a Sentencing Memorandum (Doc. No.
97) requesting, in part, a variance from the sentencing
guideline range. One of the stated justifications for the
variance was that Defendant's base offense level was
determined by reference to the guideline for actual
methamphetamine, while a co-conspirator's base offense
level was determined by reference to the guideline applicable
to a mixture and substance containing methamphetamine,
although the drugs in the offense conduct were exactly the
same. Defendant argued that the Court should vary from the
otherwise applicable guideline sentencing range to avoid an
unwarranted sentencing disparity among similarly situated
defendants, a factor recited in 18 U.S.C. § 3553(a).
16, 2019 the Government filed a Sentencing Memorandum (Doc.
No. 110), stating that the Government and Defendant had
reached agreement with respect to the application of various
contested guideline provisions. This Sentencing Memorandum
also recited that the parties had reached an agreement for a
one-level variance, for reasons other than the distinction
between actual methamphetamine and a mixture and substance
containing methamphetamine. The parties jointly recommended
that the Court find the appropriate sentencing guidelines
range to be 97 to 120 months, and that the Court should
impose a sentence of 97 months imprisonment. The Defendant
agreed to seek no further variance from the Court.
August 1, 2019 the Court held the sentencing hearing. Sua
sponte, the Court asked counsel for the Defendant about
the May 22, 2019 motion for variance. The Court asked counsel for
the Defendant and the Government whether it was true that
other co-conspirators in the offense conduct had their base
offense levels set by application of the mixture and
substance guideline, while Defendant's base offense level
was set by application of the actual methamphetamine
guideline. Counsel for both parties confirmed that those were
the accurate facts. Notwithstanding, the parties abided by
their agreement and asked the Court to impose a term of
imprisonment of 97 months.
Court varied downward two offense levels, stating: “I
am, on my own motion, going to vary down two levels so as to
avoid unwarranted sentencing disparities amongst similarly
situated defendants. I cannot justify myself the same
defendants in the same conspiracy, and with the same drugs,
starting off at a different base offense level just because
the lab reports were back either before or after they entered
their plea agreements.” (Doc. No. 117, p.14)
Government's Motion for Reconsideration of Sentence
states that the prosecutor, “Upon returning from the
hearing, . . . reviewed the records and discovered that the
co- defendants . . . were held accountable for
‘actual' methamphetamine and not ‘mixture and
substance.'” Counsel for Defendant likewise
confirmed that he had erred and provided inaccurate
information to the Court on the issue (Doc. No. 119).
apparent that the Court varied from the otherwise applicable
sentencing guideline range based on incorrect facts supplied,
and confirmed in court, by counsel for both parties. Had the
Court been provided accurate information it would not have
varied, and would have imposed the jointly recommended
sentence. Nonetheless, the Court relied on the information
counsel provided to it, as it should have been able to do.
Government now asks the Court to increase the sentence it
stated during the sentencing hearing. It cited no authority
for the Court to do so, presumably because none exists. To
the contrary, the Court is bound by 18 U.S.C. § 3582 and
Federal Rule of Criminal Procedure 35. The sentence, once
stated, may not be changed, and certainly not increased.
regrettable that the Court imposed a sentence based on
inaccurate information given to it by both the prosecution
and defense, but that is the case and may not now be changed.
THEREFORE IT IS ORDERED THAT the Government's
Motion for Reconsideration of Sentence (Doc. No. 118) is
 The Government's Motion for
Reconsideration of Sentence quotes from the hearing
transcript as it existed at that time, “Court: I
wasn't interested in the argument you made in that
motion.” The transcript has since been corrected to
accurately quote the Court as saying, “I was interested