United States Sixth Circuit

In a conviction of defendant for crack and powder cocaine related offenses, district court's grant of defendant's motion, pursuant to 18 U.S.C. section 3582(c)(2), to have his sentence reduced, in lowering defendant's life sentence to 264 months, a term that was below the minimum amended Guidelines range, is vacated and remanded where: 1) the district court erred in holding that Booker renders the Guidelines advisory in section 3582(c)(2) resentencing proceedings; 2) section 1B1.10(b)(2)(A) is binding upon the sentencing court; 3) because defendant will be free to raise his separation-of-power arguments on remand for resentencing, there is no need to depart from the general rule of not considering issues raised for the first time on appeal; and 4) defendant's argument that the government did not obtain the requisite approval required for its to appeal his sentence is rejected as, because the statutory deadline for obtaining this approval was extended, the requirement in US v. Smith, 910 F.2d 326 (6th Cir. 1990), that the approval be submitted in writing should accordingly incorporate the new statutory timeline for obtaining that approval.

Appellate Information

• Argued 10/19/2010
• Decided 12/20/2010
• Published 12/20/2010

Judges

• GILMAN

Court

• United States Sixth Circuit

Counsel

• For Appellant:
  
• Blanche B. Cook, Michael C. Holley