Arzolav.U.S.

United States District Court, D. New JerseyAug 3, 2011
Criminal Action No. 06-569 (SDW) (MCA) (D.N.J. Aug. 3, 2011)

Criminal Action No. 06-569 (SDW) (MCA).

August 3, 2011


ORDER


SUSAN WIGENTON, Magistrate Judge

This matter, having come before the Court on Petitioner Misael Arzola's ("Petitioner") Motion "for Modification of Sentence pursuant to 18 U.S.C. § 3582 for Reduction of Sentence Based on the Retroactive Amendment 599" under the Federal Sentencing Guidelines ("Motion"), and this Court, having carefully reviewed and considered the parties' submissions, for the reasons stated in this Court's Opinion dated August 3, 2011,

IT IS on this 3rd day of August, 2011,

ORDERED that Petitioner's Motion is DENIED.

OPINION

Before the Court is Petitioner Misael Arzola's ("Petitioner" or "Arzola") Motion "for Modification of Sentence pursuant to 18 U.S.C. § 3582 for Reduction of Sentence Based on the Retroactive Amendment 599" under the Federal Sentencing Guidelines ("Motion"). For the reasons stated herein, the Court DENIES Petitioner's Motion.

FACTUAL AND PROCEDURAL BACKGROUND

On March 29, 2007, a federal grand jury sitting in Newark, New Jersey returned an eight-count Second Superseding Indictment (the "Indictment") against Arzola and his co-conspirators Arsenio Arzola, Benjamin Arzola, Domingo Hernandez, Maximino Nieves, and Ruben Soto. (Indictment ¶¶ 1-10.) Count One of the Indictment charged Petitioner and his co-conspirators with conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. ( Id. ¶¶ 2-3.) Count Six charged Arzola with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). ( Id. ¶ 8.)

On October 26, 2007, following a six-week jury trial, Petitioner was convicted on both counts. (Gov't Br. Ex A at 1.) Petitioner's conviction on Count One carried with it a base offense level of thirty-six (36) and a guideline range for imprisonment of 188 to 235 months. U.S. Sentencing Guidelines Manual App. § 2D1.1(c)(2) (2011); ( see also Gov't Br. Ex. C at 6.) The government sought sentencing at this level. (Pet'r. Br. Ex. A at 3; Gov't Br. Ex. C at 6.) However, Arzola's conviction on Count Six carried with it a statutory minimum of sixty (60) months of imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). The government sought sentencing at this level. ( Id.)

As for Arzola's co-conspirators, the government sought a two-level upward adjustment pursuant to U.S. Sentencing Guidelines Manual App. § 2D.1.1(b)(1) because, at least, one defendant possessed a firearm during the conspiracy. ( Id.) However, this adjustment did not apply to Petitioner because he was convicted of possession of a firearm in furtherance of a drug trafficking crime in Count Six of the Indictment. ( See Id.)

On July 21, 2008, this Court sentenced Petitioner at an offense level of thirty-six (36) to 188 months in prison on Count One, and sixty (60) months of imprisonment on Count Six, to run consecutively for a total of 248 months. (Gov't Br. Ex. A at 2.) On January 20, 2010, the Third Circuit Court of Appeals affirmed the judgment in all respects. (Gov't Br. Ex. B.)

DISCUSSION

Arzola's argument in support of his Motion is twofold. First, he argues that although he was sentenced at an offense level of thirty-eight (38), he should have been sentenced at an offense level of thirty-six (36) on Count One. (Pet'r. Br. 1-3.) Second, he maintains that his sentence on Count Six was in violation of the "except" clause of § 924(c)(1)(A). ( Id. at 6-9.) Each of these arguments is discussed in turn.

1. Petitioner's Offense Level for Count One

Petitioner's argument begins with the factually inaccurate premise that his sentence on Count One included a two-level enhancement because, at least, one defendant possessed a firearm during the conspiracy. ( Id. at 1-3.) This argument is erroneous. The government sought sentencing for Petitioner at an offense level of thirty-six (36) and Petitioner was, in fact, sentenced at this level. (Gov't Br. Ex. A at 2; Gov't Br. Ex. C at 6.) Although each of Petitioner's co-conspirators — unlike Petitioner — received a two-level enhancement so that each was sentenced at an offense level of thirty-eight (38), this two-level enhancement did not apply to Petitioner because he was also convicted under Count Six for possession of a firearm in furtherance of a drug trafficking crime. ( See Gov't Br. Ex. C at 5-6.) Even the sentencing transcript attached to Petitioner's brief states that the two-level increase did not apply to him, and this Court specifically stated that Petitioner's level "should not be a 38, but should be a 36." (Pet'r. Br. Ex. A, Sentence Tr. at 3:10-19.) The record is clear that Arzola was actually sentenced at an offense level of thirty-six (36). Thus, Petitioner's argument that he erroneously received a two-level sentencing enhancement is factually inaccurate and therefore without merit.

2. The "Except" Clause

Petitioner further argues that his sixty (60) month sentence for his conviction under Count Six was imposed in violation of the "except" clause of 18 U.S.C. § 924(c)(1)(A). (Pet'r. Br. 6-9.) Essentially, Petitioner argues that his conviction under Count One — because it sentenced him to more than five years of imprisonment — triggered the "except" clause so as to nullify the five-year sentence for his conviction on Count Six. (Pet'r. Br. at 6-9.) This reading of the "except" clause — while not entirely implausible — is not the law.

The "except" clause provides for the imposition of a minimum five-year imprisonment as a consecutive sentence "[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§ 924(c) itself] or by any other provision of law." 18 U.S.C. § 924(c)(1)(A). In Abbott v. United States, the defendants Kevin Abbott ("Abbott") and Carolos Gould ("Gould") were each charged with violating § 924(c)(1)(A)(i) by possessing a firearm in furtherance of a drug trafficking crime. 131 S. Ct. 18, 23 (2010). Abbott was convicted on a § 924(c) count, two predicate trafficking counts, and being a felon in possession of a firearm. Id. at 23. The District Court sentenced him to fifteen years under the Armed Career Criminal Act, 18 U.S.C. § 924(e) and an additional five years for the § 924(c) violation, for a total prison term of twenty years. Id. Gould, on the other hand, pled guilty to a § 924(c) offense and a predicate drug trafficking crime. Gould was sentenced to eleven years and five months for the trafficking crime and an additional five years for the § 924(c) offense, for a total of sixteen years and five months. Id.

Abbott and Gould were defendants in unrelated prosecutions. Abbott, 131 S. Ct. at 23.

Abbott and Gould made the same argument that Petitioner makes now — that the minimum sentences they received for the non — § 924(c) offenses triggered the "excerpt" clause because those sentences "qualified as `[an]other provision of law' that `provided' a `greater minimum sentence.'" Id. at 23-24 (alteration in original). The Supreme Court explicitly rejected this argument and held that the defendant was subject to the mandatory minimum sentence specified for his violation of § 924(c) despite being convicted of a non — § 924(c) offense that imposed a greater mandatory minimum. Id. at 22-23. As the Court explained:

[T]he "except" clause applies only when another provision — whether contained within or placed outside § 924(c) — commands a longer term for conduct violating § 924(c). For example, the mandatory minimum sentence for a § 924(c) offense is five years, but if the firearm is brandished, the minimum rises to seven years, and if the firearm is discharged, to ten years. § 924(c)(1)(A)(i), (ii), (iii). A defendant who possessed, brandished, and discharged a firearm in violation of § 924(c) would thus face a mandatory minimum term of ten years.
We hold . . . that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the "except" clause as we comprehend it, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.
Id. at 23 (emphasis added). Likewise, the court noted:

[T]he clause refers to a greater minimum provided outside § 924(c) "by any other provision of law." Beyond debate, the latter instruction does not relieve a § 924(c) offender of additional punishment "simply because a higher mandatory minimum sentence exists in the United States Code."
Id. at 26 (citation omitted).

Thus, it is clear that Arzola's argument is contrary to the Supreme Court's reading of the "except" clause. As the Court noted, it is "implausible" that "Congress adopted a less aggressive mode of applying § 924(c), one that significantly reduced the severity of the provision's impact on defendants." Id. at 27. The "except" clause was not triggered by Petitioner's conviction on Count One, a non — § 924(c) offense. Further, Petitioner's sentence does not implicate "stacking" nor does it raise any other concerns that would make it contrary to law. Therefore, Petitioner's argument is without merit and he is not entitled to a reduction of his sentence.

CONCLUSION

For the reason stated above, this Court DENIES Petitioner's Motion.

SO ORDERED.