Poplar Bluff man released from prison four months before alleged murder

POPLAR BLUFF, Mo. — A recent change in the federal sentencing guidelines reduced the sentence a Poplar Bluff man was facing for possessing crack cocaine by 15 months.

After his release from federal prison, Calvin Lee "CC" Smith Jr. of the 2200 block of Grand Avenue is accused of the shooting death of another man over what authorities believe was an apparent drug debt.

The 32-year-old is charged with the Class A felony of second-degree murder in connection with the death of John Lee Griffin, 54, of the 300 block of County Road 314. Griffin's body was found July 12 in an outhouse behind an unoccupied residence in the 400 block of County Road 614. Authorities believe Griffin had been dead since July 3.

The alleged murder occurred four months to the day from when U.S. District Judge E. Richard Webber entered an order reducing Smith's sentence from 78 months to 63 months.

Up until Webber's amended judgment was entered on March 3, Smith had been in a federal prison after his Dec. 17, 2003, sentencing when Webber ordered him to serve 78 months imprisonment, followed by a five-year period of supervised release. Smith also was ordered to pay a $100 special assessment fee.

Smith had pleaded guilty Sept. 30, 2003, to one felony count of possession with intent to distribute 5 grams or more of cocaine base.

The judgment, on file with the U.S. District Court in Cape Girardeau, says the court recommended Smith be evaluated for placement in a 500-hour intensive drug treatment program and that he be placed at the facility at Millington, Tenn., Forrest City, Ark., or close to his family in Southeast Missouri, if consistent with Board of Prison guidelines.

The U.S. Marshals Service delivered Smith to the Federal Correctional Institution at Forrest City on Feb. 9, 2004.

The last docket entry in Smith's case was on Jan. 12, 2005. It showed he paid the final $25 installment on his special assessment fee.

More than three years later, on Jan. 29, 2008, Michael Skrien, a federal public defender, filed a motion to reduce the sentence in Smith's case.

Skrien filed the motion based on actions taken by the United States Sentencing Commission.

In April 2007, the United States Sentencing Commission voted to reduce the penalties on crack cocaine offenses to bring them more into line with powder cocaine offenses.

While federal law set the mandatory minimum five-year sentence for trafficking crack cocaine at 5 grams, it took 500 grams of powder cocaine to warrant the same sentence.

First-time offenders, involving 5 grams or more of crack cocaine, received a sentencing guideline range of 63 to 78 months. The sentencing guideline range for 50 grams or more was 121 to 151 months.

At that time, Smith fell into the first category since he was found in possession of 36.5 grams of cocaine base.

When Amendment 706 took effect on Nov. 1, it modified the guideline range to 51 to 63 months for 5 grams of crack cocaine and 97 to 121 months for 50 grams or more.

On Dec. 11, the United States Sentencing Commission unanimously voted to give retroactive effect to the amendment effective March 3.

That move reportedly made approximately 19,500 persons in prison, including Smith, eligible for a reduced sentence.

In anticipation of that effective date, Skrien filed his motion, asking the court to set Smith's case for a hearing on resentencing at the earliest possible time.

In support of his request, Skrien cited his client's sentencing guideline range, which had been 78 to 97 months, and was now 63 to 78 months.

"The commission lowered sentencing ranges for crack offenses ¿ because it found that the crack guideline over punished crack offenders and created unwarranted disparity between them and other drug offenders," Skrien wrote. "¿ The commission itself has repeatedly acknowledged that the guidelines' crack/powder sentencing disparity is unwarranted and 'fails to meet the sentencing objectives set forth by Congress.'

" ... It concluded that 'the statutory purposes of sentencing are best served by retroactive application of the amendment.'"

Although the sentencing commission "has suggested that retroactivity be delayed until March 3, 2008, nothing in the statute prevents the court from considering a motion before that date," Skrien said.

In the government's response to Skrien's motion, Assistant U.S. Attorney Paul Hahn wrote that the court was "without authority to reduce a sentence prior" to March 3.

"The defendant is correct that Amendment 706 reduced the guideline range applicable in his case, and therefore the court may consider whether to reduce his sentence," Hahn said. " ¿ Although [Smith] may qualify for a reduction in sentence ¿ a reduction of sentence is not automatic."

The court, Hahn said, may reduce the term of imprisonment after considering the seriousness of the offense, as well as "public safety considerations."

The court also "may consider information regarding the postsentencing conduct or situation of the defendant, whether positive or negative," he said.

If the court decides to reduce the sentence, Hahn said, the extent of the reduction is "strictly limited."

In Smith's case, Hahn said, his sentence should not be "reduced lower than the minimum guideline sentence of 63 months."

After Hahn filed the government's response, Webber set a hearing for Feb. 22 for Skrien, Hahn and Probation and Parole officials to appear at the U.S. District Court in St. Louis.

Webber's docket entry following that hearing says "counsel heard. Probation to confer with counsel and then notify the court before March 3 of the sentence that should be imposed."

On March 3, an "amended judgment" was filed with the court.

It said: " ¿ The defendant [Smith] is hereby committed to the custody of the U.S. Board of Prisons to be imprisoned for a total term of 63 months," followed by an asterisk.

The asterisk added: "This is a sentence and judgment under retroactive Amendment 706 to the U.S. Sentencing Guidelines drug quantity table ¿ defendant is eligible for immediate release."

At this time, Smith is being held in the Cape Girardeau County Jail at Jackson after being granted a change of venue there in his murder case. He is to appear at 10 a.m. Nov. 3 for a review of his case before Presiding Circuit Judge William Syler.