Opinion
Crim. No. 95-029-16 (JAF).
November 9, 2010
OPINION AND ORDER
Defendant, Moisés Calendaria-Silva, moves for a reduction of his sentence pursuant to the amended sentencing guidelines for cocaine base ("crack"). (Docket No. 3194.) We denied this motion, stating that the quantity of the other narcotics distributed in this conspiracy was enough to justify Defendant's original base offense level. (Docket No. 3315.) The First Circuit vacated our order and remanded for further consideration. United States v. Candelaria-Silva, No. 08-2131, 2009 WL 4936410 (1st Cir. Dec. 23, 2009). For the reasons stated below, we again deny Defendant's motion.
In November 2007, the U.S. Sentencing Commission (U.S.S.C.) sought to lessen the disparity between the treatment of cocaine powder and crack offenses by dropping the base offense level for possession of crack by two levels for any amount less than 4.5 kg. See U.S. Sentencing Guidelines Manual supp. app. C, amends. 706, 707, 715 (2009).
Congress has provided that, where the U.S.S.C. lowers a sentencing range pursuant to 28 U.S.C. § 994(o), a defendant previously sentenced to imprisonment under that range may move the court for a reduction in his term of imprisonment. 18 U.S.C. § 3582(c)(2). This reduction is not as of right and may be granted only after the court considers both the policy statements of the U.S.S.C. and the sentencing factors of 18 U.S.C. § 3553(a). Id. The U.S.S.C. policy statement on sentencing reductions states that a reduction cannot be granted if applying the amended guideline would not have the effect of lowering the defendant's guideline range. U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B) (2009). The commentary to the Guidelines Manual also counsels that public safety and post-sentencing conduct should be considered. Id. § 1B1.10 cmt. n. 1(B). The following sentencing factors are among those outlined in 18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.18 U.S.C. § 3553(a).
We deem it convenient to outline the procedures devised nationwide by courts to deal with the multitude of retroactive crack sentence reductions that the amendments to the Guidelines generated — the majority of which were expected to have little or no merit. The undersigned, as a member of the U.S. Judicial Conference Committee on Criminal Law and in a joint effort with the U.S.S.C., issued an Administrative Directive on February 15, 2008, detailing the streamlined procedure to be followed in determining the applicability and extent of a reduction. See In re: Petitions for Retroactive Appl. of the Nov. 1, 2007 Amend. to the Crack Cocaine Offense Level Guidelines, No. 08-31 (D.P.R. Feb. 15, 2008), attached as App. 1. In the interest of expedience, the Directive also stated that the disposition of sentencing reductions would be entered on AO Form 247, a simple fill-in-the-blanks Order Regarding Motion for Sentence Reduction, as prepared by the Judicial Conference Committee on Criminal Law.Id.; see also Memorandum from the Hon. Julie E. Carnes, Chair of the Judicial Conference Comm. on Criminal Law (Feb. 20, 2008),available at http://www.ussc.gov/training/DIR8-025.pdf.
I. Factual and Procedural Summary
Defendant was convicted on December 13, 1995, for conspiracy to possess with intent to distribute fifty grams ("g") or more of crack, five kilograms ("kg") or more of cocaine, one kg or more of heroin, and an undetermined quantity of marijuana. He was also convicted of possession with intent to distribute fifty g or more of cocaine. Criminal Case 95-029 is one of the largest, bloodiest drug-trafficking cases to have been prosecuted in decades. At sentencing (Docket No. 1226), we did not make any particular findings as to drug quantities for which Defendant was responsible simply because the then-status of the law granted discretion to the trial judge to fix, by preponderance of the evidence, the drug type and quantity for a particular defendant on the basis of the trial record. On the basis of the quantities enumerated in the charges for which Defendant was convicted and our own assessment of the evidence, we conservatively calculated his base offense level at thirty-eight. (Id.) After considering the immense size of this drug-trafficking conspiracy, comprising so many members and various kinds of drugs distributed throughout the northern half of the island for many years, it was not difficult for the experienced eye of the trial judge to arrive at a level thirty-eight. We applied a four-level enhancement due to his use of a firearm and role as a supervisor, with a resulting total offense level of forty-two. (Id.)
Witness testimony at trial revealed that Defendant; his older brother, Eulalio "Macho Gatillo" Candelaria-Silva; his younger brother, Luis "Candy" Candelaria-Silva; and his mother, Alicia Silva-Maysonet, operated a drug distribution point at the Villa Evangelina housing project in Manatí, Puerto Rico. The family sold both cocaine and heroin in Villa Evangelina; they also cut and packaged cocaine to be sold at another housing project in Manatí known as Los Murales. (See Trial Tr. vol. 15, 60-86, 125-30, Docket Nos. 718; 737.) Eulalio was initially the boss of this operation, but after Eulalio's arrest and imprisonment in 1993, Defendant took control. (Id.) The Candelaria-Silvas acted as part of a larger drug-distribution conspiracy headed by Israel Santiago-Lugo, who operated drug points throughout Northern Puerto Rico. (Id.) Santiago-Lugo operated a central distribution point from his base of operations in the Virgilio Dávila housing project in Bayamón, Puerto Rico, from where he supplied his various satellites, including the drug points controlled by the Candelaria-Silvas, with narcotics. Over a seven-year period, this conspiracy encompassed millions of dollars in sales, which represented myriad kilograms of narcotics, from at least six distribution points. The conspirators, armed with various firearms, including AK-47 and AR-15 assault rifles, engaged in a bloody turf war with the rival Rosario brothers gang that resulted in horrific murders not seen in even the most lurid Hollywood gangster movie. Defendant personally led an armed posse on a manhunt for a group of individuals who had briefly kidnapped him and robbed him of cocaine and heroin. (See Trial Tr. vol. 15, 125-30, Docket No. 737.)
During the investigation into this conspiracy, police seized two ledgers from a coconspirator during a search of an apartment in the Virgilio Dávila project. FBI Agent Harold Clouse, an expert in the cryptanalysis of drug and racketeering records, testified that these two ledgers spanned a one-year period from October 1990 through October 1991, and detailed the supply of narcotics to members of the conspiracy. (See Trial Tr. vol. 7, Docket No. 683.) He further testified that the ledger recorded transactions for units of narcotics coded as "c," "r," and "a." (Id.) His conservative estimate of the number of units sold for each narcotic in that one-year period were as follows: 28,208 units of "c"; 7,802 of "r"; and 753 units of "a." (Id. at 981.) There were an additional 9,535 unidentified units sold. (Id.) He estimated the monetary value of all units sold as $3,472,350. (Id.)
Earlier in the trial, the Government called as a witness Marcos Hidalgo-Meléndez, a former member of the Santiago-Lugo organization who had been in charge of cocaine distribution in Los Murales. He testified to the use of ledgers — the same analyzed by Agent Clouse — to record the distribution of narcotics. (Tr. Tr. vol. 3, 360-65, Docket No. 662.) He further testified that "c" was short for cristal, the organization's moniker for heroin, and that "r" signified "bolso rojo," or cocaine. (Id.) According to Hidalgo-Meléndez, the units recorded in these ledgers corresponded to "packages" or "packets." (Id. at 362.) Fifty packets of cocaine equaled 1/8 kg of cocaine. (Id. at 376.) Hidalgo-Meléndez also testified that 100 packets of heroin, further divided into 1,000 bags, were sold each week at Los Murales and affirmed that this amounted to 1/8 kg per week. (Id. at 379-80 ("Q: Did you nevertheless find out how much [Santiago-Lugo] would pay for that eighth of a kilogram that you previously stated was sold every week at the Los Murales housing project? A: I was aware, I had knowledge that at that point in time the eighth of a kilo of heroin was being sold in the market for $28,000.").) By applying Agent Clouse's estimates of the number of units sold to Hidalgo-Meléndez's testimony of the number of units in each 1/8 kg of cocaine and heroin, we can arrive at a total of 35.26 kg of heroin and 19.5 kg of cocaine distributed by the conspiracy in but one year of a seven-year conspiracy.
We note an apparent price discrepancy in Hidalgo-Meléndez's testimony that Santiago-Lugo purchased 1/8 kg of heroin for $28,000. Hidalgo-Meléndez had previously testified that each packet was sold for $75. At 100 packets per 1/8 kg of heroin, this would translate to a price of $7,500 per 1/8 kg of heroin. It is improbable that Santiago-Lugo was selling heroin at a loss of $20,500 per 1/8 kg. Rather, it is reasonable to infer that Hidalgo-Meléndez confused the question and answered "$28,000" as the price paid by Santiago-Lugo for a full kg of heroin. Given the $75 price per packet, and 800 packets comprising a kg, this would result in a gross of $60,000, and a net profit of $32,000 to the organization for each kg of heroin sold. This also comports with the $11 per bag street price of heroin as testified to by Hidalgo-Meléndez. (See Trial Tr. vol. 3, 380, Docket No. 662.) At that price, coconspirators would buy 1/8 kg of heroin from Santiago-Lugo for $7,500, sell it for $11,000, and split the proceeds between themselves and the runners, sellers, and lookouts that made up the lower rungs of the organization.
Finally, from the testimony of Carlos Otero-Colón we infer that Defendant entered into this conspiracy at some point before the period of time documented in the aforementioned ledgers. Otero-Colón testified that he transported cocaine for Santiago-Lugo's brother, Raúl, and would deliver it to Defendant to be processed before it was sold at Los Murales. (See Trial Tr. vol. 15, 60-86, Docket No. 718.) He also testified that he later tried to establish his own drug point in Alto de Cuba and that his transactions in relation to that drug point were recorded in the same ledger discussed above. (See Trial Tr. vol. 15, 87-98, Docket No. 737.) Thus, we infer that Defendant began his participation in the conspiracy at some earlier time.
II. Analysis
Defendant argues that his sentence was based on the former guideline for crack and, therefore, should be reduced. We previously denied Defendant's motion, reasoning that "Any of the other narcotics standing alone substantiate the offense level 42 for which defendant was sentenced." (Docket No. 3323.) Following our denial, the First Circuit surprisingly remanded the case and instructed us to point to record support for our conclusion that Defendant had been responsible for a combined quantity of narcotics great enough to justify his sentence despite the Guidelines' reduction for crack.
The First Circuit has not directly addressed the question of whether a fact-finding as to drug quantity can be made in the course of a § 3582(c)(2) proceeding. The Seventh Circuit, however, has approved of fact-finding in a sentence reduction. InUnited States v. Woods, the Seventh Circuit upheld a denial of a § 3582(c)(2) reduction based on drug quantities contained in the presentencing report ("PSR") but not specifically included in the findings of fact made at sentencing. 581 F.3d 531, 538-39 (7th Cir. 2009). The court found that when deciding a § 3582(c)(2) motion, district courts may not make factual findings inconsistent with the original sentencing court's findings. Id. at 538. In that case, the sentencing court found the defendant guilty of distributing "in excess of 1.5 kilograms of crack." Id. The PSR, however, stated that the conspiracy for which defendant was convicted had been responsible for the distribution of hundreds of kg of crack and cocaine powder. The Seventh Circuit noted that if the sentencing court's language had been more restrictive, e.g., if it found the defendant guilty of distributing exactly 1.5 kg of crack, then the fact-finding conducted in the § 3582(c)(2) decision might have been impermissible. The Sixth Circuit has also stated that such fact-finding in consideration of a § 3582(c)(2) motion is permissible:
We do not agree with [defendant] that the district court's previous determination of `more than 1.5 kilograms' means that it cannot also find more than 4.5 kilograms. . . . [N]othing in the record from [defendant's] initial sentencing indicates that the district judge made any specific determination other than more than 1.5 kilograms. . . . [A] new factual finding of the higher quantity is not inconsistent with the court's determination at [defendant's] original sentencing.United States v. Moore, 582 F.3d 641, 646 (6th Cir. 2009).
The Fourth Circuit, in an unpublished opinion, joined the Sixth and Seventh Circuits in stating that new fact-findings of drug amounts may be made, so long as they are not inconsistent with fact-findings made during the original sentencing. See United States v. Jones, No. 09-7785, 2010 U.S. App. LEXIS 14875 (4th Cir. July 20, 2010).
For the reasons previously explained, and because it was obvious to all involved that the immense quantities of drugs distributed over this seven-year conspiracy justified a base offense level of thirty-eight, we made no further findings of specific drug quantities at sentencing. (See Docket No. 1226.) We also note that the charges Defendant was convicted of did not enumerate definite amounts. (See Docket No. 322 at 4 (charging "(5) kilograms or more . . . of . . . cocaine" and "(1) kilogramor more . . . of heroin") (emphasis added).) From the trial testimony of Hidalgo-Meléndez and Agent Clouse, we easily and conservatively infer that in a one-year period this conspiracy was responsible for the possession with intent to distribute at least 35.26 kg of heroin. This amount of heroin, alone, results in a base offense level calculation of thirty-eight. Furthermore, this number accounts for distribution of heroin in only one year of a seven-year conspiracy — a period in the relative infancy of Santiago-Lugo's criminal organization. In succeeding years, this drug distribution operation expanded to even more drug points. In our view, the 35.26 kg of heroin and 19.5 kg of cocaine we attribute to the conspiracy is merely the tip of the iceberg. Furthermore, from the testimony of Carlos Otero-Colón discussed supra, we find that Defendant had entered into the conspiracy by this point and that the amount of narcotics distributed was reasonably foreseeable to him. This fact-finding is consistent with the charges Defendant was convicted of and is made on the basis of the factual record developed at trial. We agree with the Fourth, Sixth, and Seventh Circuits that a fact-finding of this nature is proper.
Because Defendant participated in a conspiracy to possess with intent to distribute a quantity of heroin that justified his original base offense level, regardless of the amount of crack attributable to the conspiracy, Defendant does not qualify for reduction under § 1B1.10. A consideration of § 3553(a) sentencing factors is, therefore, unnecessary in this case.
III. Conclusion
For the foregoing reasons, we hereby DENY Defendant's motion for sentence reduction under § 3582(c)(2) (Docket No. 3194).
IT IS SO ORDERED.
San Juan, Puerto Rico, this 9th day of November, 2010.
08-31 (JAF)
UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO IN RE: PETITIONS FOR RETROACTIVE Misc. No. APPLICATION OF THE NOVEMBER 1, 2007 AMENDMENT TO THE CRACK COCAINE OFFENSE LEVEL GUIDELINES.ADMINISTRATIVE DIRECTIVE I.
Effective on November 1, 2007, the U.S. Sentencing Commission implemented amendment #706, as amended by #711, lowering the Base Offense Level for crack cocaine by two levels. The 2007 crack amendment will be applied retroactively effective March 3, 2008.See Application Note 10(D), entitled "Instructions for Combining Crack Cocaine with Other Drugs;" USSG § 1B1.10, as amended, and 18 U.S.C. § 3582(c)(2). See also The Federal Cocaine Sentencing Report submitted to Congress by the Sentencing Commission on May 15, 2007.Without prejudging any issues related to the implementation of the amendment, we deem it convenient to share with the bar some principles and legal understandings that reasonable minds find appropriate for consideration in the process of applying the amendment retroactively. The listing that follows does not prejudge any issue related to the approved retroactivity.
1. The 2007 Crack Amendment, #706 (as amended by #711), was made retroactive effective March 3, 2008. Retroactivity allows the sentencing court to consider a possible reduction of imprisonment for inmates meeting certain criteria set by statute and the guidelines. The relevant statutes and Guideline Policy Statement are the following:
A. Direction from Congress — 28 U.S.C. § 944(u)
B. Authority of the Court — 18 U.S.C. § 3582(c)(2)
C. Implementation Guideline — USSG § 1B1.10 as amended on November 1, 2007, effective on March 3, 2008.
2. 28 U.S.C. § 944(u) provides, in pertinent part, as follows:
If the Commission reduces the term of imprisonment recommended in the Guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.
In turn, 18 U.S.C. § 3582(c)(2) provides, in pertinent part, as follows:
In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently 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 § 3553(a), to the extent that they are applicable, if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Lastly, the policy statement itself, USSG § 1B1.10, must be considered. See USSG § 1B1.10, as amended effective March 3, 2008. The amendment is available in a Supplement to the Guidelines Manual, www.ussc.gov. The amendment is not contained in the 2007 Guidelines Manual. Section § 1B1.10 implements 28 U.S.C. § 994(u) and provides guidance and limitations regarding motions under 18 U.S.C. § 3582(c)(2).
3. The retroactivity implementation process has three steps:
A. One must look at the Criminal Judgment; the Presentence Investigation Report, and any plea agreement to determine if the defendant is eligible for a reduction;
B. the next step requires a determination of the extent of any reduction allowed;
C. followed by a consideration of factors to determine if, and to what extent, a reduction is warranted.
4. The General Eligibility Requirements under 18 U.S.C. § 3582(c)(2) must be considered.
A. The defendant is serving a term of imprisonment;
B. the amendment is listed in USSG § 1B1.10(c), and
C. the Guideline Range applicable to the defendant has subsequently been lowered as a result of a listed amendment. It must be noted, however, that an amendment listed in § 1B1.10(c) may not always lower the defendant's applicable guideline range. Examples of this are the operation of another guideline, e.g., an "override" by the Chapter Four Career Offender Guideline, or a statutory provision, such as a mandatory minimum sentence which "trumps" the otherwise applicable range.
5. Some examples of when the Crack Cocaine Amendment would not result in a lowering of the guideline range are the following:
A. Base Offense Level is 12.
B. Quantity of crack cocaine exceeds 4,500 gms.
C. The defendant is a career offender (§ 4B1.1) or an armed career criminal (§ 4B1.4).
D. The defendant is subject to a mandatory minimum in excess of the guideline range (§ 5G1.1(b)).
E. Certain cases involving multiple drug types.
This listing is not numerus clausus. Other cases will have to be considered by judicial officers, in order to determine if they are foreclosed from the lowering effect of the amendment. Some of these cases may include individuals who have received the benefit of a sentence reduction under Fed.R.Crim.P. 35(b) or defendants whose binding plea agreements, Fed.R.Crim.P. 11(e)(1)(C), may exclude further reductions.
Pursuant to USSG § 1B1.10(b)(1) and App. Note 2, the amended guideline range is determined by substituting only the amendment listed at USSG § 1B1.10(c) into the guidelines as applied at the original sentencing. All other guideline application decisions for the original sentencing remain unaffected.
It is important to note that the crack amendment implementation procedure does not require a full resentencing. It is not a de-novo sentencing. See 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10(a)(3). Proceedings in the reduction of a sentence under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 DO NOT constitute a full resentencing of the defendant.
6. Pursuant to Fed.R.Crim.P. 43(b)(4), "A defendant need not be present under any of the following circumstances . . . Sentence Correction — The proceeding involves the correction or reduction of a sentence under Rule 35 or 18 U.S.C. § 3582(c)(2)."
It is also important to note that pursuant to USSG § 1B1.10(b)(c)(2)(C), the reduced term of imprisonment cannot be less than the term of imprisonment the defendant has already served.
7. There appear to be other general limitations on the extent of possible reduction. Under USSG § 1B1.10(b)(2)(A), if the original sentence was within the original guideline range, the term of imprisonment cannot be reduced to less than the minimum of the amended guideline range. An example is in order.
Example: Original sentence within range, § 1B1.10(b)(1) (2)(A) and App. Note 3
Original Guideline Range: 41-51 months (OL 21 — CHC II)
Original Term Imposed: 46 months
Amended Guideline Range: 33 to 41 months (OL 19 — CHC II)
The court shall not reduce defendant's term of imprisonment to a term less than 33 months.
Other limitations must be considered, as well as exceptions to the rule. If the original sentence was less than the minimum of the original guideline range, i.e., a departure or variance, a reduction comparably less than the amended guideline range is permissible. However, when the original sentence was a variance pursuant to United States v. Booker, 543 U.S. 220 (2005), a reduction from the sentence originally imposed generally would not be appropriate.
Booker-related issues must be addressed by the district court. However, Booker may not apply because the amendment is directed at reducing, not increasing, the defendant's sentence. Also, the distinction between departures and variances must be clearly understood. One thing is a traditional departure. However, if we are to consider a post-Booker variance, where the sentencing judge had more liberty to sentence a particular defendant, then there may not be basis for further reductions based on the amendment. Another example is of help.
Example: Original sentence below range, USSG § 1B1.10(b)(2)(B) App. Note 3.
Original Guideline Range — 70-87 months
Original Term Imposed — 56 months
(Court imposed a downward departure of 20% below the minimum of the guideline range)
Amended Guideline Range — 57-71 months
A reduction of 20% from the amended guideline range minimum of 57 months would result in a comparable reduction, i.e., 46 months.
8. USSG § 1B1.10 and App. Note 1(B) make reference to another factor to consider in determining if and to what extent a reduction is warranted. Within the limits established by § 1B1.10(b) as to the possible extent of a reduction, the following shall be considered:
§ 3553(a) factors, as consistent with § 3582(c)(2):
— Public safety: The seriousness of the danger to any person or the community.
— The court may also consider post-sentencing conduct of the defendant while in prison.
9. Lastly, supervised release revocations are not affected by the amendment. pursuant to § 1B1.10, App. Note 4, only a term ofimprisonment imposed as part of the original sentence can be reduced under § 1B1.10. No other component of the sentence, such as fines or restitutions, can be reduced under this provision. A reduction in the term of imprisonment imposed upon revocation of supervised release is not authorized.
II.
As part of the implementation of the 2007 crack amendments, the U.S. Sentencing Commission held a sentencing summit in St. Louis, Missouri, on January 23-25, 2008. During said meeting, the various attending districts were represented by prosecutors, Federal Public Defenders, Probation Department personnel, and the court itself. Our District representatives worked intensively and were able to foster cooperation and flexibility, in order to implement the retroactivity of the crack amendment.
The following is a general outline of this District's implementation plan.
1. The District of Puerto Rico will entertain motions, pro se or otherwise, seeking relief under the retroactive crack amendment effective March 3, 2008. Any motion filed before the effective date of the amendment will not be decided until at least March 3, 2008.
2. The filing of any such motion will be notified to the U.S. Attorney's Office, Attn: Supervisory Asst. U.S. Attorney Jeannette Mercado and Asst. U.S. Attorney José Ruiz, Chief, Criminal Division, Torre Chardón, 350 Carlos Chardón St., San Juan, PR 00918; Tels. (787) 282-1884 and (787) 282-1809, e-mail:jeanette.mercado@usdoj.gov and jose.ruiz3@usdoj.gov, respectively; and to the U.S. Probation Office, Attn: Assistant Deputy Chief U.S. Probation Officer Zulma Basora, 400 Federico Degetau Federal Building, 150 Carlos Chardón Avenue, San Juan, PR 00918-1703; Tel. (787) 766-5814; e-mail:zulma_basora@prp.uscourts.gov and belinda_zayas@prp.uscourts.gov. If the filing is made pro se, the Court Services Manager and Courtroom Deputy Clerk to the Chief Judge, Rebecca Agostini-Viana, U.S. District Court Clerk's Office, 150 Carlos Chardón St., San Juan, PR 00918, Tel. (787) 772-3053, e-mail:becky_agostini@prd.uscourts.gov, will enter a docket order notifying the parties concerned of said filing.
3. The court appoints the Federal Public Defender's Office,Attn: AFPD Héctor L. Ramos-Vega, 241 Franklin D. Roosevelt Ave., San Juan, PR 00918-2441; Tel. (787)-281-4922, e-mail:hector_ramos@fd.org and ruth_sein@fd.org, as the default defense counsel for all pro-se filings. This default appointment is without prejudice of retained representations or CJA appointments if ordered by the court.
4. Upon receipt of notice of the filing of any such motions seeking reduction of sentence, the Probation Office will prepare and electronically file, within ten (10) days, a "retroactivity package" consisting of the following documents:
A. Presentence Investigation Report
B. Judgment and Commitment Order
C. Plea Agreement
D. Indictment
E. Sentencing transcript if available.
The filing will be made restricted to "Selected Parties" (counsel and court), and will include a short recommendation as to eligibility for the benefits of the retroactive amendment.
5. The designated Assistant Federal Public Defender, retained or otherwise appointed counsel, and the Assistant U.S. Attorney will meet to consider and announce any stipulated disposition. Such recommendation to the court must be filed not later than ten (10) days after the filing of the retroactivity package and Probation Office recommendation contemplated in paragraph 4, ante. If the stipulated disposition is accepted by the court, an AO Form 245, Form Order Regarding Motion for Sentence Reduction, will be entered forthwith.
The Clerk will mark the ten-day periods contemplated herein for automatic follow-up and notice of electronic notification to counsel.
6. In the absence of stipulation for disposition as contemplated in paragraph 5 above, the Probation Office will make a final recommendation as to disposition within five (5) days of the entry of the electronic notification to counsel contemplated in paragraph 5 ante. Thereafter, the parties will have five (5) days to file simultaneous memoranda not exceeding four pages, proposing a final disposition. Upon the expiration of such term, the final disposition will be announced by the court, without the need of a hearing and without a mandatory request of the defendant's presence. The court will then enter an expedited disposition order in AO Form 245 and the same will be filed forthwith.
The short terms provided in paragraphs 5 and 6 are intended to mainly accommodate those cases where an inmate is a candidate for immediate release.
7. Individual judicial officers are at liberty to consider other circumstances that may require the extension or modification of the terms of this Administrative Directive.
San Juan, Puerto Rico, this 15th day of February, 2008.