(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,
decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1 (1992) (emphasis in original). Since Amendment 459 -- which added subsection (b) of Guideline § 3E1.1 -- is not listed in § 1B1.10(d), this Court is unable to modify Rios-Paz' sentence under 18 U.S.C. § 3582(c)(2).
Rios-Paz argues that Amendment 459 should be applied retroactively as it merely "clarifies" existing law. [Def's] Memo. of Law at 7-8. In United States v. Guerrero, 863 F.2d 245 (2d Cir. 1988), the court held that an amendment which serves to "clarify a meaning that was fairly to be drawn from the original version" would be applied retroactively. Id. at 250. See also United States v. Deigert, 916 F.2d 916, 917 (4th Cir. 1990) (same); United States v. Restrepo, 903 F.2d 648, 656 (9th Cir. 1990) (same), withdrawn in part on other ground on reh'g en banc, 946 F.2d 654 (1991), cert. denied, U.S. , 112 S. Ct. 1564, 118 L. Ed. 2d 211 (1992). However, defendant's reliance on those decisions is misplaced because each of those courts pointed to the Commission's statement that the amendments were for clarification purposes only. Guerreo, 863 F.2d at 250 (amendments "are intended solely to enhance understanding and clarity"); Deigert, 916 F.2d at 917 ("purposes of this amendment are to correct a clerical error and to clarify the operation of the guidelines"); Restrepo, 903 F.2d at 656 (amendments "clarify the intent underlying § 1B1.3 as originally promulgated"); see also United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir. 1991) (noting that clarifying amendment states that it is "to clarify" the operation of the guideline), cert. denied, U.S. , 112 S. Ct. 443, 116 L. Ed. 2d 461 (1991).
In contrast, it is obvious that Amendment 459 is not a "clarifying amendment" because it does not clarify existing law. In proposing Amendment 459, the Commission stated, "this amendment provides an additional reduction of one level for certain defendants whose acceptance of responsibility includes assistance to the government in the investigation or prosecution of their own misconduct." App. C, Amend 459 (1992).
Amendment 459 is an intended change in the law to induce criminal defendants to plead early on in the case for purposes of prosecutorial and judicial economy. See U.S.S.G. App. C, Amend. 459 (1992) (adding Application Note 6 that "to qualify [for the additional one level reduction], the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficient early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently") (emphasis supplied). Thus, the additional one level reduction is clearly a change in Guideline § 3E1.1, not a clarification of the earlier guideline, and cannot be retroactively applied under that theory.
Moreover, this Court agrees with the well-reasoned opinion of Judge Breyer of the First Circuit in United States v. Havener, 905 F.2d 3 (1st Cir. 1990), that there are other substantial reasons that preclude retroactive application of Guidelines amendments. In Havener, the defendant was sentenced as a "career offender" under Guideline § 4B1.1. Id. at 4. While the case was on appeal, the court addressed whether the defendant could benefit from Amend. 266 to the Guidelines, which amended § 4E1.1 to allow "career offenders" to receive a two-level downward adjustment for acceptance of responsibility under § 3E1.1. Id.
The court held that Amend. 266 could not be retroactively applied. Id. at 5. First, the court equated a Guidelines amendment which changes the term of imprisonment to be imposed at sentencing to a change in substantive criminal law, and applied the general rule of non-retroactivity of statutes in the area of substantive criminal law. Id. at 5-6. Next, since the prefatory language of § 3582(c) provides that a court cannot modify an imposed sentence except as provided for in § 3582(c)(1) and (c)(2), "once the district court imposes the sentence, no one can change it, unless [it fits within one of those exceptions]." Id. at 6-7. Finally, the court noted that, by not including Amend. 266 in § 1B1.10(d), the Commission determined that it not be retroactively applied based, in part, on the administrative inconvenience of applying Guidelines amendments to those presently serving prison terms. See id. at 7. Similarly, the court reasoned that Guidelines amendments should not retroactively apply to cases on appeal because it would create artificial incentives for convicted defendants to take unnecessary appeals or to delay their appeals in the misguided hope of benefiting from a subsequent Guidelines amendment. Id. at 7-8.
As those reasons are equally applicable to this case, this Court must concur with Judge Breyer that:
In sum, the statutory language [of 18 U.S.C. § 3582(c)], considerations of administrative policy, and the quite different background [of] retroactivity assumptions in the area of substantive criminal law lead [this Court] to conclude that [Rios-Paz] does not have a legal right to benefit from Amendment , which amendment took effect after this Court had "imposed" his otherwise lawful sentence.
Id. at 8.
Rios-Paz moves for a modification of his sentence in light of the additional one-level reduction for acceptance of responsibility as provided for in Amend. 459 to the Sentencing Guidelines. As that amendment cannot be retroactively applied, his habeas petition and, alternatively, his motion for reduction of sentence is denied.
Dated: Brooklyn, New York
December 22, 1992
I. Leo Glasser, U.S. D. J.