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United States v. Carey

United States District Court, E.D. Kentucky, Southern Division, London

January 14, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
LARRY EDWARD CAREY, Defendant.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

This matter is pending for consideration of Defendant Larry Carey's motion to reduce the length of his imprisonment pursuant to 18 U.S.C. § 3582(c)(2). [Record No. 102] On November 7, 2005, Carey was sentenced to a term of incarceration of 160 months following his conviction on various drug conspiracy charges. [Record No. 91] Carey contends that this sentence should be reduced as a result of the recent changes to the United States Sentencing Commission's drug tables in the United States Sentencing Guidelines. However, for the reasons explained below, Carey's motion will be denied.[1]

On January 27, 2005, a six-count Indictment was returned against Carey and two other defendants. [Record No. 1] Specifically, Carey was charged with: conspiring to distribute pills containing oxycodone, a Schedule II substance; conspiring to distribute pills containing hydrocodone, a Schedule III substance; conspiring to distribute pills containing alprazolam, diazepam, and clonazepam, Schedule IV controlled substances; possessing a firearm in furtherance of a drug trafficking crime; and two forfeiture counts. [ Id. ] Carey pleaded guilty to the charges on July 20, 2005. [Record No. 51] Paragraph 3 of Carey's written Plea Agreement describes his role in the offenses. It states:

(a) Rx Discount Pharmacy was burglarized by three subjects on October 6, 2004. Middlesboro Police Department and DEA conducted an investigation after receiving a tip that the defendant, Larry Carey was involved. Agents interviewed Carey and obtained his confession that he[, ] Donald Hobart Phelps and Ronald E. Boyd agreed to break into the pharmacy and split the drugs between them. Carey led agents to a place near the residence where officers found a large bag buried with thousands of schedule II, III, and IV pills. Two witnesses were interviewed who stated they witnessed Carey frequenting the place where the drugs were found several times carrying a shovel and a shotgun or pistol. Carey told the witnesses that he would "kill anyone caught near the drugs". Agents obtained a video from the pharmacy which depicted three subjects entering the pharmacy and removing the narcotics of which the defendant, Larry Carey, identified himself, the defendant, Ronald E. Boyd and Donald Hobart Phelps in the video. Upon the arrest of Ronald E. Boyd and after Miranda, Boyd admitted to the pharmacy burglary and that he assisted Donald Phelps and Larry Carey, aka Duke. Boyd further stated that the defendants planned the burglary together and that they used Boyd's Mustang in the crime.
(b) The officers recovered from the residence of the defendant, Larry Carey, a quantity of narcotic pills, $2, 110.00 in currency and a 12 gauge New England shotgun and Rossi.38 caliber revolver. The pharmacy reported a total inventory loss from the burglary of 58, 368 units of schedule II, III and IV substances.

[Record No. 87, p. 2]

At Carey's sentencing hearing on November 7, 2005, the Court considered the factors set forth under 18 U.S.C. § 3553, including: the seriousness nature of the offense, the history and characteristics of the defendant, the detrimental impact such crimes have on the public, Carey's need for rehabilitation from drug addiction, and the need for adequate general and specific deterrence to future criminal conduct. [Record No. 91] In conjunction with these factors, the Court reviewed the defendant's Presentence Investigation Report ("PSR"). Carey's Base Offense Level was 30 under the United States Sentencing Guidelines. [PSR, p. 13] Based on Carey's previous criminal history, including numerous charges of theft, burglary, and receipt of stolen goods, he was placed in Criminal History Category VI. [ Id., p. 40] He received an adjustment for acceptance of responsibility pursuant to U.S.S.G. §3E1.1. As a result, Carey's Total Offense Level was 27 and his non-binding guideline range for imprisonment was 130 - 162 months, followed by a consecutive term of 60 months for the gun offense. [ Id., p. 36] The United States moved for a downward departure from the guideline range pursuant to U.S.S.G. § 5K1.1 as a result of Carey's assistance to the authorities. [Record No. 91] After applying the reduction to tor guideline range for the drug counts, Carey received a total sentence of 160 months of incarceration (100 months on Count 1, 60 months on Count 2, and 36 months on Count 3, with those terms to run concurrently, and a consecutive term of 60 months on Count 5) and was ordered to pay restitution. [ Id. ]

Based on the facts summarized above, the Court continues to believe that the sentence originally imposed is sufficient but not greater than necessary to meet all the statutory goals included in 18 U.S.C. § 3553(a). Given the Defendant's extensive criminal history, the Court finds that a shorter term of imprisonment would not sufficiently deter Carey from similar criminal conduct in the future. Further, the term of incarceration imposed in 2005 reflects an already-reduced sentence as a result of Carey's assistance to the United States. Any further reduction would unduly diminish the seriousness of Carey's criminal conduct and fail to satisfy the remaining statutory factors. Accordingly, it is hereby

ORDERED that the Defendant Larry Carey's motion to reduce his sentence pursuant to 18 U.S.C. § ...


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