UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-057-LM-3 Opinion No.

P Michael Bean

ORDER

The defendant, Michael Bean, was sentenced to a 120-month mandatory

minimum prison sentence on April 16, 2019. Presently before the court is Bean’s

request (doc. no. 164) that the court issue an order recalculating his criminal history

score and category in light of the recent amendment to the so-called “status points”

provision of the United States Sentencing Guidelines, U.S.S.G. § 4A1.1(e). Bean

concedes that he is ineligible for a sentence reduction as a result of any such

recalculation, but contends that the Bureau of Prisons (“BOP”) may afford him

certain administrative relief if the court recalculates his criminal history score and

category. The government takes no position on Bean’s request. Doc. no. 165. For the

following reasons, the court grants Bean’s request, and lowers his criminal history

score from ten to nine and his criminal history category from V to IV.

PROCEDURAL HISTORY

On November 21, 2018, Bean pled guilty to one count of conspiracy to

distribute and possess with intent to distribute fifty grams or more of

methamphetamine in violation of

and 841(b)(1)(A)(viii). He was subject to a mandatory minimum prison sentence of 120 months.

(b)(1)(A).

At sentencing, the court attributed ten criminal history points to Bean due in

part to the status points provision of the sentencing guidelines then in effect. See

doc. no. 92 ¶ 52 (presentence report, applying status points provision and

accordingly increasing Bean’s criminal history score from eight to ten); doc. no. 151

at 3 (transcript of sentencing hearing, adopting probation’s status points

determination). A criminal history score of ten resulted in a criminal history

category of V. See doc. no. 151 at 3. Based in part on that criminal history category,

the court calculated Bean’s advisory sentencing guidelines range to be 120 to 140

months.1 See id. at 10-11. The court ultimately sentenced Bean to the 120-month

mandatory minimum sentence set forth in § 841(b)(1)(A).

DISCUSSION

As noted, this case concerns the status points provision of the sentencing

guidelines. Status points attribute criminal history points to defendants for the fact

of having committed the offense for which they are being sentenced while under

1 The court arrived at this figure by: (1) applying a categorical policy disagreement with the manner in which base offense levels in “ice” methamphetamine cases are calculated under the sentencing guidelines (see United States v. Bean,

(D.N.H. 2019)), which yielded a total offense level of 29 instead of the total offense level of 33 set forth in the presentence report, and which, in conjunction with a criminal history category of V, yielded a sentencing range of 140-170 months; then (2) granting a 20% downward departure, which resulted in a new range of 112-140 months; and finally (3) bumping the low end of that range up to the statutorily mandated minimum sentence of 120 months in light of U.S.S.G. § 5G1.1(c)(2). 2 another criminal justice sentence, including while on probation, parole, or

supervised release. On August 24, 2023, the United States Sentencing Commission

determined to give retroactive effect to Amendment 821 to the Sentencing

Guidelines, which modified how status points are calculated pursuant to U.S.S.G.

§ 4A1.1. Under the previous status points provision, two criminal history points

were added to the defendant’s criminal history score if the defendant committed the

instant offense while under a criminal justice sentence. Under the current version,

a defendant receives status points only if the defendant has seven or more criminal

history points prior to the attribution of status points. See U.S.S.G. § 4A1.1(e). In

addition, a defendant who receives status points now receives only one additional

criminal history point instead of two. See id.

Here, Bean was on probation at the time he committed the offense. See doc.

no. 92 ¶ 52. Therefore, at sentencing, the court attributed status points to Bean

based on the version of § 4A1.1 in effect at that time. The attribution of status

points increased Bean’s criminal history score from eight to ten, which yielded a

criminal history category of V.

Under the current version of the status points provision, Bean would still

receive status points because he had seven or more criminal history points prior to

the attribution of status points, but he would receive only one additional criminal

history point instead of two. See id. ¶¶ 39-52; U.S.S.G. § 4A1.1. Therefore, if the

court retroactively applies the current status points provision to Bean, his total

3 criminal history score will be nine instead of ten, and his criminal history category

will be IV instead of V.

However, because Bean has already received the minimum sentence

permitted by law in this case, it is undisputed that he is ineligible for a sentence

reduction pursuant to

(c)(2) and U.S.S.G. § 1B1.10.2 Rather than

requesting the court reduce his sentence, Bean “seeks an order finding and

declaring simply that his criminal history category is reduced pursuant to the

retroactive guidelines.” Doc. no. 164 at 2. He points to other cases in which BOP

represented to one or more parties that a court’s order retroactively lowering a

defendant’s criminal history category could impact the defendant’s “Prisoner

Assessment Tool Targeting Estimated Risks and Needs” (“PATTERN”) score.

According to BOP’s website, PATTERN is a risk assessment tool used by BOP

to measure an inmate’s risk of recidivism. Federal Bureau of Prisons, First Step Act

(last visited Dec. 11, 2024).3 The PATTERN score for male defendants is

2 Bean’s recalculated sentencing guidelines range with a criminal history category of IV would be 120-121 months. The court arrives at this figure by: (1) combining the total offense level of 29 to the criminal history category of IV, which yields an initial range of 121 to 151 months; (2) granting the same 20% downward departure, which yields a new range of 97 to 121 months; then (3) bumping the low end of that range up to 120 months in light of the applicable mandatory minimum and U.S.S.G. § 5G1.1(c)(2).

3 Available at:

https://www.bop.gov/inmates/fsa/#:%7E:text=PATTERN%20is%20a%20tool%20that, recidivism%20risk%20scores%20and%20levels.

4 determined, in part, by their criminal history score. See doc. no. 164-1.4 A defendant

with ten criminal history points receives a general score of 32, and a violent score of

12. Id. A defendant with nine criminal history points, however, receives a general

score of 24 and a violent score of 9. Id. This reduction in scoring could be used by

BOP to reclassify Bean’s risk of recidivism to a lower category, see doc. no. 164-2,5

which in turn could impact his ability to apply earned-time credits to his sentence

and obtain other administrative relief.

While it appears that retroactively lowering Bean’s criminal history score or

category could impact BOP’s decision making to afford him certain relief, there is a

split of authority as to whether a court has the power to retroactively lower a

defendant’s criminal history score or category under Amendment 821 outside the

context of granting a sentence reduction. Several cases support the proposition that

courts do have such authority. See United States v. Freeman, No. CR-10-165-R,

, at *1 (W.D. Okla. Dec. 5, 2023) (finding that defendant’s criminal

history score under amended status points provision was reduced from seven to five

despite additional finding that defendant was nevertheless ineligible for a sentence

reduction); United States v. Hernandez, Crim. No. 3:21-00153,

, at

*2 (S.D. W. Va. Nov. 2, 2023) (directing probation to amend the defendant’s

presentence report to reflect a lower criminal history score and category in light of

4 Also available on BOP’s website at:

https://www.bop.gov/inmates/fsa/docs/male_pattern_form.pdf?v=1.3.

5 Also available on BOP’s website at:

https://www.bop.gov/inmates/fsa/docs/fsa_cut_points.pdf?v=1.3. 5 Amendment 821 despite fact that defendant was not entitled to a sentence

reduction); United States v. Pedroso, No. 1:22-cr-00239-1 (N.D. Ill. Apr. 22, 2024)

(doc. no. 57). And the District of Nevada has issued a standing order inviting

litigants to make such requests. See General Order 2024-01, In re: Recalculation of

Criminal History Points, at *1-2 (D. Nev. June 28, 2024) (“Because criminal history

points may have administrative consequences for convicted defendants in [BOP]

custody, this Court will entertain requests for retroactive reduction of criminal

history points for eligible defendants pursuant to Amendment 821 regardless of

whether a reduction in criminal history points would change the defendant’s

sentencing guidelines range or reduce the defendant’s sentence.”).6

However, other courts—including two within the First Circuit—have

concluded that they lack power to retroactively lower a defendant’s criminal history

score or category pursuant to Amendment 821 outside the context of a sentence

reduction. See United States v. Bueno-Beltran, Crim. No. 15-189-1 (RAM),

, at *3 (D.P.R. Aug. 2, 2024); United States v. Williams, No. 2:15-cr-00069-

JDL-1,

, at *3 (D. Me. Mar. 4, 2024); report and recommendation

adopted,

(D. Me. Apr. 3, 2024); United States v. Nesbitt, Crim.

No. 5:17-097-DCR,

, at *1-2 (E.D. Ky. May 21, 2024); United

States v. Passley, No. 19-CR-534 (WFK),

, at *1 (E.D.N.Y. Apr. 16,

2024); United States v. DeJournett, No. 5:13-cr-513-1,

, at *3

6 Available at: https://www.nvd.uscourts.gov/wp-content/uploads/2024/07/GO-

2024-01-Recalculation-of-Criminal-History-Points.pdf. 6 (N.D. Ohio Apr. 11, 2024). These courts generally reason that (1) a court’s power to

modify a sentence once it has been imposed is strictly circumscribed, (2)

(c) speaks only to sentence reductions, and (3) a court cannot order BOP to

reclassify an inmate’s PATTERN score. See, e.g., Bueno-Beltran,

,

at *3.

After due consideration, the court concludes it has authority to issue an order

recalculating Bean’s criminal history score and category under the current status

points provision even though such a recalculation will not entitle him to seek a

sentence reduction. While it is true that a court’s authority to modify a sentence

once it has been imposed is limited, see, e.g., United States v. Mercado-Flores,

(1st Cir. 2017),7 a defendant’s criminal history score or category form

no part of the defendant’s sentence. Rather, they are calculations used as part of the

process set forth in the sentencing guidelines to arrive at the advisory sentencing

guidelines range. See U.S.S.G. §§ 1B1.1, 1B1.3, 4A1.1. A defendant’s criminal

history score and his guidelines range inform the court’s discretion in fashioning an

appropriate sentence, but neither the guidelines range nor the criminal history

score themselves are part of the sentence. This is apparent from, among other

things, the fact that they do not form any part of the judgment. See doc. no. 117

7 The Districts of Puerto Rico and Maine rely heavily on Mercado-Flores in

concluding that they lack jurisdiction in these circumstances, but the facts of Mercado-Flores differ starkly. There, the trial court, acting sua sponte, vacated a 57- month sentence and dismissed the case in its entirety twenty-four days after entry of judgment because it concluded that the criminal statute that supplied the defendant’s offense of conviction did not apply to purely intrastate criminal acts in Puerto Rico. See Mercado-Flores,

. No such sweeping action is at issue here. 7 (judgment); Fed. R. Crim. P. 32(k)(1) (“In the judgment of conviction, the court must

set forth the plea, the jury verdict or the court’s finding, the adjudication, and the

sentence.”).

Still, some courts have concluded they lack jurisdiction to act in these

circumstances because

does not expressly state that courts may

retroactively lower a defendant’s criminal history score outside the sentence

reduction context. But neither does that statute expressly forbid courts from doing

so. Section 3582 states only that “[t]he court may not modify a term of

imprisonment once it has been imposed except”: (1) to grant a sentence reduction on

compassionate release grounds; (2) when modification is expressly permitted by

another statute or Rule 35 of the Federal Rules of Criminal Procedure; or (3) when

the defendant “has been sentenced to a term of imprisonment based on a sentencing

range that has been subsequently lowered by the Sentencing Commission” pursuant

to a retroactive amendment to the sentencing guidelines.

As an initial matter, the statute is inapposite because granting a defendant

relief in these circumstances does not “modify a term of imprisonment” for the

reasons already discussed. § 3582. But even if it did, here Bean “has been sentenced

to a term of imprisonment based on a sentencing range that has been subsequently

lowered by the Sentencing Commission” pursuant to a retroactive amendment to

the sentencing guidelines. § 3582(c)(2). His sentence was originally based upon a

sentencing range of 120-140 months. Application of Amendment 821 will lower his

sentencing range to 120-121 months. Supra, n.2. Therefore, to the extent § 3582 is

8 even applicable, it gives the court authority to grant Bean the relief he requests

pursuant to § 3582(c)(2).

At least one court has held, however, that it lacked jurisdiction in these

circumstances because it could locate no statute or rule of criminal procedure

expressly authorizing the court to retroactively recalculate a defendant’s criminal

history score or category independent of a sentence reduction. See Nesbitt,

, at *1-2. While this court cited the United States Supreme Court’s opinion

in Kokkonen v. Guardian Life Insurance of America,

(1994), it failed to

acknowledge the concept of ancillary jurisdiction discussed in that opinion. See

“[T]he doctrine of ancillary jurisdiction . . . recognizes federal courts’

jurisdiction over some matters (otherwise beyond their competence) that are

incidental to other matters properly before them.” Kokkonen,

(acknowledging the doctrine of ancillary jurisdiction but concluding it did not apply

in the circumstances of that case). It applies in civil proceedings as well as criminal

proceedings. See United States v. Coloian,

(1st Cir. 2007). “Under

this concept, a district court acquires jurisdiction of a case or controversy in its

entirety, and, as an incident to the full disposition of the matter, may hear

collateral proceedings when necessary to allow it to vindicate its role as a tribunal

[or] ‘to render complete justice.’” 13 Richard D. Freer, Federal Practice & Procedure:

Jurisdiction § 3523.2 & n.8 (3d ed.) (quoting Jenkins v. Weinshienk,

(10th Cir. 1982)). “A federal court invokes ancillary jurisdiction as an incident

to a matter where it has acquired jurisdiction of a case in its entirety and, as an

9 incident to the disposition of the primary matter properly before it.” United States

v. Dunegan,

(3d Cir. 2001) (cited with approval in Coloian,

). A court may exercise ancillary jurisdiction over a claim, matter, or

issue, when it is, “in varying respects and degrees, factually interdependent” with a

claim over which the court has original jurisdiction. Coloian,

(quoting

Kokkonen,

).

Here, the court has original jurisdiction over the entirety of the criminal

proceeding against Bean.

. The court had jurisdiction to determine

Bean’s criminal history score and category when calculating his advisory sentencing

range and determining an appropriate sentence. Recalculating Bean’s criminal

history score and category under the amended status points provision is “factually

interdependent” with the court’s prior determination—indeed, the recalculated

criminal history score will rely upon the exact same factual circumstances (Bean’s

record of criminal convictions) as the original criminal history score did. Coloian,

(quotation omitted). Because the court has original jurisdiction over

this action in its entirety, the facts upon which Bean’s recalculated criminal history

score are based are identical to the facts upon which his original criminal history

score was based, and because application of Amendment 821 is necessary to do

complete justice to the parties, the court has jurisdiction in the circumstances of

this case.

Finally, the court does not share the concerns of those courts which have

declined to afford relief in these circumstances on the ground that a court may not

10 direct BOP to reclassify a prisoner’s PATTERN score or otherwise provide a

prisoner with administrative relief. See, e.g., DeJournett,

, at *3.

Recalculation of a defendant’s criminal history score or category compels no action

on the part of BOP. It is BOP’s prerogative whether to reclassify Bean’s PATTERN

score or grant him any administrative relief in light of a new, lower criminal history

score. To be sure, Bean has presented evidence that BOP may elect to lower his

PATTERN score if this court grants the relief he seeks. But any decision in that

regard would be made by BOP, not this court.

For these reasons, the court concludes that it has the authority to

retroactively apply Amendment 821 to Bean and lower his criminal history score

and category. His request (doc. no. 164) is therefore granted.

CONCLUSION

The request (doc. no. 164) to lower Bean’s criminal history score and category

pursuant to Amendment 821 is granted. Bean’s criminal history score is lowered

from ten (10) to nine (9), and his criminal history category is lowered from V to IV.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 12, 2024

cc: Counsel of Record

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