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Government's Response in Opposition to Defendant's Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(2) — United States v. Harrescia…
Summary
The government's response in opposition to defendant Harrescia Hopkins's pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(2), filed March 13, 2024 in United States v. Harrescia Hopkins, No. 1:22-cr-00284-SEG-CMS, in the U.S. District Court for the Northern District of Georgia, as Document 52. It states that the defendant pleaded guilty to two counts of wire fraud under 18 U.S.C. § 1343 related to Paycheck Protection Program applications, with an original total offense level of 11 and a range of 8 to 14 months. The response says the court considered Amendment 821 and varied at sentencing, imposing five months' imprisonment. Applying the zero-point reduction gives a total offense level of 9 and a range of 4 to 10 months, and the government argues the motion should be denied because the sentence falls within that range. It is signed by an Assistant United States Attorney.
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No. 1:22-cr-00284-SEG-CMS · Doc. 52 · Docket on CourtListener
Full text
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
U NITED S TATES OF A MERICA
Criminal Action No.
v.
1:22-CR-284-SEG-CMS
H ARRESCIA H OPKINS
Government’s Response in Opposition to Defendant’s Motion for Sentence
Reduction Under 18 U.S.C. § 3582(c)(2)
The United States of America, by Ryan K. Buchanan, United States Attorney,
and Sarah E. Klapman, Assistant United States Attorney for the Northern District
of Georgia, files this response in opposition to Defendant Hopkins’s Motion for
Sentence Reduction (Doc. 47). Because Defendant already received the benefit of
Amendment 821 via a variance at sentencing, the motion should be denied.
A. Background
In August 2022, Defendant Hopkins was charged in a two-count indictment
with wire fraud, in violation of Title 18, United States Code, Section 1343, related
to a Paycheck Protection Program loan application and a second draw borrower
application form that she submitted for the business Hopkins Towing and
Storage (Doc. 1). She pleaded guilty to both counts of the indictment (Doc. 19).
Her original guidelines were calculated as follows:
Base offense level: 7
Loss (§ 2B1.1(b)(1)(D)): +6
Acceptance: -2
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 2 of 7
Total offense level: 11
Criminal history points: 0
Criminal history category: I
Custody Guideline Range: 8 to 14 months
See Exhibit 1, chart prepared by United States Probation Office. Defendant was a
zero-point offender. The Court considered Amendment 821 and varied under
3553(a) to give Defendant the guidelines benefit at her sentencing. She was
sentenced to five months’ imprisonment with two years of supervised release to
follow (Doc. 35). Defendant now seeks an additional sentence reduction in her
pro se motion (Doc. 47).
B. Eligibility
In Part B, Subpart 1 to Amendment 821 to the Sentencing Guidelines, the
Sentencing Commission added USSG § 4A1.1(c), providing a 2-offense-level
reduction for certain offenders who have zero criminal history points, but only if
they qualify by establishing each of ten separate requirements. The new
provision states:
§ 4C1.1. Adjustment for Certain Zero-Point Offenders
(a) ADJUSTMENT.—If the defendant meets all of the following criteria:
(1) the defendant did not receive any criminal history points from Chapter
Four, Part A;
(2) the defendant did not receive an adjustment under §3A1.4 (Terrorism);
(3) the defendant did not use violence or credible threats of violence in
connection with the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
2
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 3 of 7
(7) the defendant did not possess, receive, purchase, transport, transfer,
sell, or otherwise dispose of a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the offense;
(8) the instant offense of conviction is not covered by §2H1.1 (Offenses
Involving Individual Rights);
(9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime
Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights
Offense); and
(10) the defendant did not receive an adjustment under §3B1.1
(Aggravating Role) and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848;
decrease the offense level determined under Chapters Two and Three by 2
levels.
The Commission later made this change retroactive as of February 1, 2024. See §
1B1.10(e)(2) (Nov. 1, 2023).
Defendant presents the current motion pursuant to 18 U.S.C. § 3582(c)(2).
That section provides that a court may, in its discretion, reduce the sentence of a
defendant whose Sentencing Guidelines range has been lowered by a
retroactively applicable Sentencing Guidelines amendment, where the reduction
is consistent with the sentencing factors of § 3553(a) and any applicable policy
statements:
3
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 4 of 7
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on its
own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that they
are applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
In Section 1B1.10 of the Guidelines, the Sentencing Commission has identified
the amendments which may be applied retroactively pursuant to this authority,
including Part B, Subpart 1 of Amendment 821, and articulated the proper
procedure for implementing those amendments. Section 1B1.10(b)(2)(A)
provides: “Except as provided in subdivision (B) [related to substantial
assistance], the court shall not reduce the defendant’s term of imprisonment
under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than
the minimum of the amended guideline range determined under subdivision (1)
of this subsection,” that is, the range produced by application of the retroactive
guideline amendment.
In Dillon v. United States, 560 U.S. 817 (2010), the Supreme Court addressed
the process for application of a retroactive guideline amendment, emphasizing
that Section 1B1.10 is binding. The Court declared: “Any reduction must be
consistent with applicable policy statements issued by the Sentencing
Commission.” Id. at 821. The Court required district courts to follow a two-step
approach:
4
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 5 of 7
At step one, § 3582(c)(2) requires the court to follow the Commission’s
instructions in §1B1.10 to determine the prisoner’s eligibility for a sentence
modification and the extent of the reduction authorized. Specifically,
§1B1.10(b)(1) requires the court to begin by “determin[ing] the amended
guideline range that would have been applicable to the defendant” had the
relevant amendment been in effect at the time of the initial sentencing. “In
making such determination, the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was sentenced and shall
leave all other guideline application decisions unaffected.” Ibid.
Consistent with the limited nature of § 3582(c)(2) proceedings,
§1B1.10(b)(2) also confines the extent of the reduction authorized. Courts
generally may “not reduce the defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) . . . to a term that is less than the minimum of the
amended guideline range” produced by the substitution. §1B1.10(b)(2)(A).
...
At step two of the inquiry, § 3582(c)(2) instructs a court to consider any
applicable § 3553(a) factors and determine whether, in its discretion, the
reduction authorized by reference to the policies relevant at step one is
warranted in whole or in part under the particular circumstances of the
case.
Dillon, 560 U.S. at 827.
In this case, Defendant received the benefit of Amendment 821 via a variance
at sentencing. Amendment 821 affects her guidelines as follows:
Base offense level: 7
Loss (§ 2B1.1(b)(1)(D)): +6
Acceptance: -2
Zero point reduction: -2
Total offense level: 9
Criminal history points: 0
Criminal history category: I
5
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 6 of 7
Custody Guideline Range: 4 to 10 months
See Exhibit 1. Defendant’s original sentence is within the amended guidelines
range, and Amendment 821 was considered by the Court at sentencing. Her
motion should be denied.
Respectfully submitted,
R YAN K. B UCHANAN
United States Attorney
/s/S ARAH E. K LAPMAN
Assistant United States Attorney
Georgia Bar No. 437221
sarah.klapman@usdoj.gov
6
Case 1:22-cr-00284-SEG-CMS Document 52 Filed 03/13/24 Page 7 of 7
Certificate of Service
The United States Attorney’s Office served this document today by sending a
copy by first class mail with sufficient postage to:
Harrescia Hopkins
FMC Lexington Atwood Unit
P.O. Box 14525
Lexington, KY 40512
March 13, 2024
/s/ S ARAH E. K LAPMAN
S ARAH E. K LAPMAN
Assistant United States Attorney
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