Opinion
S7 03 CR 1256 (JFK).
May 18, 2009
Memorandum Opinion Order
On November 4, 2004, Raphael Clemente ("Clemente") pled guilty, pursuant to a plea agreement, to one count of conspiracy to commit armed robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. As part of his plea agreement with the government, Clemente stipulated that his sentencing range under the U.S. Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") was 84 to 105 months, based on a base offense level of 20 pursuant to U.S.S.G. § 2B3.1(a) (the robbery guideline), a 5-level enhancement pursuant to U.S.S.G. 2B3.1(b)(2)(C) (for brandishing a firearm during the course of the offense), a 1-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(6) (for the robbery of narcotics), a 3-level reduction pursuant to U.S.S.G. §§ 3E1.1(a) and (b) (for acceptance of responsibility), and a criminal history category of V.
Clemente was sentenced on March 14, 2005, to 84 months' imprisonment, a sentence at the lowest end of his stipulated sentencing range under the plea agreement. Clemente did not appeal and is currently serving his sentence.
Clemente now moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 599 (effective November 1, 2000) to the Guidelines. He argues that the Court punished him twice for the same conduct by applying an enhancement for brandishing a firearm to his sentence for armed robbery. (Def. Mem. 4.) For the reasons stated below, the motion is DENIED.
Discussion
Amendment 599 revised the "Application Notes" commentary to U.S.S.G. § 2K2.4, the section governing cases in which the defendant was convicted for using a firearm, armor-piercing ammunition, or an explosive during or in relation to certain crimes, in violation of 18 U.S.C. §§ 844(h), 924(c), or 929(a). Amendment 599 clarifies that if a defendant has been convicted of one of these separate weapons offenses and also of the underlying crime, the court may not apply a weapon enhancement to the underlying crime, lest "unwarranted disparity and duplicative punishment" result. See U.S.S.G. app. C, amend. 599, reason for amendment.
Here, Clemente was not convicted of a separate weapon offense. Instead, he was only convicted of conspiring to commit armed bank robbery, a crime for which he received the 5-level weapon enhancement. Thus, Clemente's situation does not fall under Amendment 599 because he has not received a duplicative punishment for his use of a firearm. See United States v. Figueroa, No. 6:00-cr-75-Orl-22, 2008 WL 2609717, at *1 (M.D. Fla. June 26, 2008) (finding Amendment 599 inapplicable where "Defendant received a two-level enhancement . . . for possession of a dangerous weapon . . . [but] was not convicted of a separate firearms offense . . . nor was his sentence based in any part on U.S.S.G. § 2K2.4").
Accordingly, Clemente's motion for a reduction of his sentence is denied.
SO ORDERED.