Crim. No. 09-294 (DRD).
February 23, 2011
Paul J. Fishman, United States Attorney, Newark, New Jersey, By: Matthew E. Beck, Assistant U.S. Attorney, For the United States.
Kevin F. Carlucci, Esq., Office of the Federal Public Defender, Newark, New Jersey, Attorney for Defendant.
Guillaume Baselet, Register No. 57511-004, McRae Correctional Facility, McRae, Georgia, Pro Se.
Defendant, Guillaume Baselet, having moved to correct his sentence pursuant to 18 U.S.C. § 3582(c)(2) and to correct the Bureau of Prison's calculation of the time he has spent in custody; and for the reasons set forth in an opinion of even date;
IT is this 22nd day of February, 2011;
ORDERED that Defendant's motion is dismissed.
OPINIONDefendant, Guillaume Baselet, seeks relief asserting that (1) recent amendments of the Sentencing Guidelines resulted in 2 points having been added erroneously to his Criminal History score and (2) his time served has been calculated erroneously.
On or about August 7, 2006, Defendant was convicted in the United States District Court for the Southern District of Florida of encouraging and inducing aliens to unlawfully enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). He was sentenced to a six months term of imprisonment. After his conviction removal proceedings were commenced against Defendant, and on March 7, 2007 he was removed from the United States to Haiti.
Defendant reentered the United States. On June 11, 2008 he was arrested by deportation officers with the Department of Homeland Security, Immigration and Customs Enforcement Fugitive Operations ("ICE"). He was held in ICE custody until August 15, 2008 when he was arrested and taken into federal custody pursuant to a criminal complaint filed in this case. He was indicted on the charge of illegally reentering the United States after having been deported subsequent to being convicted for an aggravated in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He pled guilty on April 5, 2010.
Defendant's Pre-Sentence Report ("PSR") calculated his Guidelines range to be 46 to 57 months based on an Offense Level of 21 and a Criminal History Category of III based on five criminal history points. The five points were made up of two points for his 2006 conviction, two points for committing the instant offense while on supervised release, and one point for committing the offenses within two years of having been released from custody. The Court sentenced Defendant to 46 months imprisonment. Now Defendant moves pursuant to 18 U.S.C. § 3582 to modify the sentence, reducing the term of imprisonment.
Defendant argues that his Criminal History Category should be reduced by two points because the Guidelines were amended after he was sentenced to remove any points for committing an offense shortly after being released from custody. Effective November 1, 2010 the U.S. Sentencing Commission amended the Guidelines to remove a Criminal History score enhancement for convictions that were incurred after a recent release from incarceration. However, if that amendment were applied to him, it would have resulted in only a one point reduction, not two as Defendant contends. (see former U.S.S.G. § 4A1.1(e)).
If the Court reduced Defendant's Criminal History score by one point, which would leave him with four Criminal History points, he would still be within Criminal History category III. His advisory Guidelines range would not change. There is no reason to adjust his sentence and his motion that the Court do so will be denied.
As for Defendant's contention that the Bureau of Prisons ("BOP") has incorrectly calculated his term of incarceration because it did not give him credit for time spent in ICE custody, this is an issue that must first be addressed by the BOP. At this juncture, administrative remedies not having been exhausted, the Court does not have jurisdiction to hear the motion. Further, were the administrative remedies exhausted, a court having jurisdiction over Defendant's custodian would be the appropriate forum in which to proceed, 28 U.S.C. § 2241.
For the foregoing reasons Defendant's motion will be denied. The Court will file an appropriate order.
February 22, 2011