Opinion
01 Civ. 5706 (RPP), 02 Cr.101 (RPP)
October 8, 2003
OPINION AND ORDER
Petitioner George Vasquez filed this pro se petition pursuant to 18 U.S.C. § 3582(c)(2), requesting a reduction of his sentence through the retroactive application of Amendment 640 to the United States Sentencing Guidelines § 2D1.1. Because the Court lacks statutory authority to modify Petitioner's sentence on these grounds, his petition is denied.
Background
On September 24, 1993, Petitioner was found guilty of conspiracy to distribute and possess with intent to distribute heroin under 21 U.S.C. § 846, and distribution and possession with intent to distribute heroin under 21 U.S.C. § 841. This Court found Petitioner "had reason to know that 1 to 3 kilograms of heroin was [sic] being distributed" (Dec. 30, 1993, Tr. Sentencing Hr'g at 44), and applied a base offense level of 32 pursuant to the Drug Quantity TaWe4n U.S.S.G. § 2D1.1. The Court then made upward adjustments of two levels each for obstruction of justice and possession of a gun. (Tr. at 46-47.) The resultant offense level of 36 was decreased to 34 following a two-level reduction for being a "minor participant" (Tr. at 47) pursuant to U.S.S.G. § 3B1.2(b). Petitioner's criminal history category was calculated as IV (Tr. at 49); Applying Petitioner's total offense level to his criminal history category, this Court sentenced him to 262 months imprisonment followed by five years of supervised release and a $100 special assessment. (Tr. at 49-50.)
Pursuant to Amendment 640 of the Sentencing Guidelines, the base offense level for defendants who receive a mitigating role adjustment under U.S.S.G. § 3B1.2 was lowered on November 1, 2002, to a maximum of 30. On April 11, 2003, Petitioner filed a "Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 18 U.S.C. § 3582" asking the Court to apply the amendment retroactively and reduce his sentence accordingly.
The retroactive application of Amendment 640 would have a significant effect in Petitioner's sentence. 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). If this language is applied retroactively, Petitioner's total offense level would remain at 34, due to the level enhancements he received for obstruction of justice and possession of a gun.
However, the official comment to U.S.S.G. § 3B1.2 states "[i]n a case in which the court applied § 2D1.1 and the defendant's base offense level under that guideline was reduced by operation of the maximum base offense level in § 2D1.1(a)(3), the court also shall apply the appropriate adjustment under this guideline." U.S. Sentencing Guidelines Manual § 3B1.2, cmt. n. 6 (2002). This means that were Petitioner to benefit from the maximum base offense level of 30 according to the newly revised § 2D1.1(a)(3), he would receive an additional two-level reduction in this case from 34 to 32. In practical terms, this would reduce his current sentence from 262 months to 168-210 months: a difference of over four years.
Discussion
Court Lacks Authority to Apply Amendment 640 RetroactivelyA court may not generally modify a sentence imposing imprisonment. 18 U.S.C. § 3582 (c); Vasquez v. United States, 2001 WL 668933, at *2 (S.D.N.Y.) (J. Patterson); see also U.S.S.G. § IB 1.11(a) ("The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced."). Section 3582(c)(2) provides a limited exception for defendants who were sentenced according to ranges subsequently lowered by the Sentencing Commission. Section 3582(c)(2) provides in pertinent part:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . upon motion of the defendant . . . the court may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2).
In order for a defendant to benefit from a subsequent reduction of sentencing ranges, the reduction must conform to "applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993). When the Commission makes a policy determination to reduce sentencing ranges retroactively, it has a duty to specify "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). The Commission does so in U.S.S.G. § 1B1.10. The Background Commentary to this section explains:
The listing of an amendment in subsection (c) reflects policy determinations by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound discretion of the court, a reduction in the term of imprisonment may be appropriate for previously sentenced, qualified defendants.
U.S.S.G. § 1B1.10, cmt. (backg'd.) (2002). The Application Notes to this section explain that "[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range." U.S.S.G. § IB 1.10, cmt. n. 1 (2002). Therefore, in order for a reduction to be consistent with the policy statements issued by the Sentencing Commission, it must be included in the list of amendments that may be applied retroactively, as enumerated in U.S.S.G. § 1B1.10(c). United States v. Perez, 129 F.3d 255, 259 (2d Cir. 1997) (This section "governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2)."); United States v. Baez, 2002 WL 1163575, at *2 (S.D.N.Y. 2002); Romero v. United States, 2002 WL 776750, at *1 (S.D.N.Y. 2002). Section 1B1.10(a) states "[i]f none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized." U.S.S.G. § 1B1.10(a); United States v. Perez, 129 F.3d at 259; United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993; United States v. Rodriguez, 989 F.2d 583, 587-88 (2d Cir. 1993); Garraway v. United States. 2003 WL 21018850, at *1 (S.D.N.Y. 2003); Rivera v. United States, 2002 WL 31681601, at *2 (S.D.N.Y. 2002) ("[I]f an amendment is not specifically listed in 1B1.10(c), a reduction of a sentence pursuant to Section 3582(c)(2) is not consistent with the Sentencing Commission's policy statement.").
Because Amendment 640 is not included in the § 1B1.10(c) list of amendments that may be given retroactive application, this Court lacks authority to modify Petitioner's sentence.
The Court will not Consider Whether Amendment 640 is a Substantive Change
Although Petitioner does not claim that he is entitled to retroactive application of Amendment 640 on grounds that it is a clarifying amendment, the government argues that because the amendment is substantive, it should not be applied on the ground it is a clarifying amendment.
Justice Scalia, writing for the majority in Braxton v. United States, commented, "Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u). This power has been implemented in U.S.S.G. § IB 1.10, which sets forth the amendments that justify sentence reduction." Braxton v. United States, 500 U.S. 344, 348 (1991). Courts in this district have interpreted Justice Scalia's comments as imposing a rule stating that only amendments listed in U.S.S.G. § IB 1.10 will be given retroactive effect. United States v. Hernandez, 2002 WL 732121, at *1 (S.D.N.Y. 2002): see also United States v. Baez, 2002 WL 1163575, at *2 (S.D.N.Y. 2002) ("Whether 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.");Vasquez v. United States, 2001 WL 668933, at *3.
The Second Circuit supported this interpretation by the recent ruling in United-States v. Garcia, 339 F.3d 116, 120 (2d Cir. 2003), where it discussed the same question of law as that of the present case. TheGarcia court did not discuss whether Amendment 640 could be given retroactive application based on the clarifying or substantive nature of the amendment. Instead, it focused on the question of whether the amendment was listed in § IB 1.10. The court held, citing United States v. Caceda. 990 F.2d at 710, that because this amendment was not included in § 1B1.10, it could not be applied retroactively.United States v. Garcia. 339 F.3d at 120.
Conclusion
For the foregoing reasons, Petitioner's petition is denied.
IT IS SO ORDERED.