Opinion
No. 03 CV 2953 (SJ).
June 29, 2004
PEDRO SANTIAGO, White Deer, PA, Petitioner Pro Se.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney Eastern District of New York, Brooklyn, NY, Cecil C. Scott, Esq., Assistant United States Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Pedro Santiago ("Petitioner") brings this pro se Motion (the "Motion") for Modification of an Imposed Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2) and § 1B1.10 of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). In his Motion, Petitioner relies upon Amendment 640 to U.S.S.G. § 2D1.1(a)(3), effective November 1, 2002. The amendment affords a maximum base level offense of 30 for narcotics defendants who receive a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2. For the reasons stated herein, Petitioner's motion is DENIED.
BACKGROUND
Petitioner was indicted on July 12, 1996, with a superceding indictment filed on March 3, 1997, charging him with several counts of narcotics trafficking conspiracy and attempt pursuant to 21 U.S.C. § 846, Hobbs Act robbery and attempt under 18 U.S.C. § 1951, and the use of firearms in connection with these crimes, in violation of 18 U.S.C. § 924(a).
Pursuant to a plea agreement with the government entered into on May 21, 1997, Petitioner pled guilty to one count of conspiracy to possess with attempt to distribute cocaine. On December 9, 1997, the Court sentenced Petitioner to 160 months imprisonment, five years supervised release and a $100 special assessment. The remaining charges against Petitioner were dismissed with prejudice.
Petitioner's sentence was based on the following application of the Guidelines in effect when the offenses were committed: As the offenses involved at least 50 kilograms of cocaine but less than 150 kilograms of cocaine, the base level offense pursuant to U.S.S.G. § 2D1.1 (a)(3), referencing § 2D1.1 (c)(2), was 36.See Presentence Report ("PSR") ¶ 14. The base level offense was enhanced by two levels for possession of a firearm, pursuant to U.S.S.G. § 2D1.1(b)(1). PSR ¶ 15. Petitioner received a three level adjustment for Acceptance of Responsibility per U.S.S.G. §§ 3E.1.1 (a) and 3E.1.1 (b)(2). PSR ¶ 20. The resulting total offense level, therefore, was 35. PSR ¶ 21. The plea agreement called for a sentence within the range of 168 to 210 months. At the time of sentencing, defense counsel requested, and this Court granted, a two-point downward adjustment for Petitioner's minor role in the offense, bringing the sentencing factor to 33. The relevant guideline range was ____. Petitioner was sentenced to 160 months.
On December 24, 1997, Petitioner filed a timely notice of appeal, and on June 11, 1998, through counsel, Petitioner submitted a brief to the Second Circuit Court of Appeals. On December 11, 1998, the Court of Appeals dismissed Petitioner's appeal on the grounds that Petitioner, pursuant to his plea agreement, knowingly and voluntarily waived his right to appeal a sentence within or below the Guidelines range for the applicable offense.
On December 13, 1999 Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2255. On August 6, 2002, this motion was denied by Order of this Court. See Santiago v. United States, Docket No. 99 CV 5760 (Memorandum and Order, Aug. 6, 2002). Petitioner then filed a Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 59(e). On June 9, 2003, said motion was also denied by Order of this Court.
DISCUSSION
I. Amendment 640 Does Not Apply RetroactivelyAlthough a court may not generally modify a sentence imposing imprisonment, it may, under 18 U.S.C. § 3582(c)(2), modify an imposed term of imprisonment where the relevant sentencing guidelines have been subsequently amended. Vasquez v. United States, No. 01 CV 5707, 2003 WL 2316546, at *2 (S.D.N.Y. Oct. 8, 2003). U.S.S.G. § 1B1.10 lists the amendments that may be applied retroactively, in connection with a motion made under 18 U.S.C. § 3582(c)(2), such as that filed by Petitioner. An amendment not listed in § 1B1.10 may not be applied retroactively. See United States v. Baez, No. 89 CR 133, 2002 WL 1163575, at *2 (S.D.N.Y. June 3, 2002); United States v. Perez, 129 F.3d 255, 258-59 (2d Cir. 1997) (finding that U.S.S.G. § 1B1.10 "governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2).").
Amendment 640 to U.S.S.G. § 2D1.1(a)(3) took effect on November 1, 2002, nearly five years after Petitioner was sentenced. The current language of U.S.S.G. § 2D1.1(a)(3) states that in cases such as the present one, the base offense level shall be determined according to the Drug Quantity Table, "except that if the defendant receives an adjustment under § 3B1.2 (Mitigating Role), the base offense level under this subsection shall be not more than level 30." U.S.S.G. § 2D1.1(a)(3). However, because Amendment 640 is not listed in U.S.S.G. § 1B1.10, it may not be applied retroactively.
Because the Court holds that Amendment 640 does not apply retroactively, it need not reach the issue of whether Amendment 640 substantively changes the Guidelines or merely clarifies them. See Vasquez v. United States, 2003 WL 2316546, at *2 (declining to consider whether Amendment 640 is a substantive change); United States v. Garcia, 339 F.3d at 120 (not discussing whether Amendment 640 is clarifying or substantive, but holding that because it was not included in § 1B1.10, it could not be applied retroactively); United States v. Baez, 2002 WL 1163575, at *2 ("[w]hether or not the amendment is deemed a clarifying amendment, it may not be applied retroactively unless it is listed in U.S.S.G. § 1B1.10"); United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993) (declining to retroactively apply an amendment to the Guidelines where U.S.S.G. § 1B1.10 did not explicitly provide for the amendment's retroactivity).
II. The Rule of Lenity Does Not Apply Here
Petitioner asks that under the rule of lenity, this Court conclude "that the [Sentencing] Commission's stated reasons for Amending [sic] U.S.S.G. § 2D1.1(a)(3) create an ambiguity at best." (Pet'r's Mot. for Modification of an Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(2) at 9.) Although the rule of lenity is generally applicable to the Sentencing Guidelines and to criminal statutes, "in order for the rule of lenity to apply to a criminal law — or in this case, to a Guideline — the provision of law at issue must be ambiguous."United States v. Simpson, 319 F.3d 81, 87 (2d Cir. 2002). The current version of § 1B1.10, which does not include Amendment 640, is not ambiguous and thus does not justify invocation of the rule of lenity.
CONCLUSION
For the foregoing reasons, the Petitioner's motion for resentencing pursuant to 18 U.S.C. § 3582 (c)(2) and U.S.S.G. § 1B1.10. is DENIED. The Clerk of the Court is directed to close the case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the decision would not be taken in good faith.SO ORDERED.