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UNITED STATES v. RIOS-PAZ

December 22, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRES RIOS-PAZ, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 On December 1, 1989, defendant Andres Rios-Paz pleaded guilty to possession with intent to distribute in excess of 500 grams of cocaine. Based on the calculations in the pre-sentence report, *fn1" on February 7, 1990, this Court sentenced Rios-Paz to 63 months of imprisonment, five years of supervised release, and a $ 50.00 special assessment.

 By habeas petition, filed December 14, 1992, Rios-Paz moves for a reduction in sentence pursuant to 28 U.S.C. § 2255 based on a recent amendment to the United States Sentencing Guidelines ("Guidelines"). Section 3E1.1 of the Guidelines now provides for an additional one-level decrease for acceptance of responsibility in computing the applicable sentencing range. See U.S.S.G. App. C, Amend. 459 (1992) (effective Nov. 1, 1992).

 The relief defendant seeks is beyond the scope of a habeas petition. Section 2255 of Title 28 allows a court to vacate, set aside, or correct a sentence if the petitioner alleges that:

 the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .

 28 U.S.C. § 2255. Rios-Paz does not claim that his sentence suffered from any of those infirmities. Moreover, a sentencing court is required to consider the sentencing guidelines in effect at the sentencing date. 18 U.S.C. § 3553(a)(4); United States v. Colon, 961 F.2d 41, 45 (2d Cir. 1992). Accordingly, the habeas petition must be dismissed.

 However, since it is obvious from the memorandum of law accompanying the petition that Rios-Paz intended to move for a reduction of sentence under 18 U.S.C. 3582(c)(2), this Court will treat it as such in light of Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Section 3582(c)(2) enpowers a court to modify a sentence imposed pursuant to the Guidelines in light of subsequent amendments that would have lowered the applicable sentencing range had they been in effect at the date of sentencing, provided the Sentencing Commission has not issued a policy statement against retroactive application of the guideline amendment. *fn2"

 Under section 994(a) of Title 28, the Sentencing Commission ("Commission") shall promulgate Guidelines to be used by sentencing courts when imposing sentence upon criminal defendants. 28 U.S.C. § 994(a)(1). To facilitate application of the Guidelines, the Commission is authorized to issue general policy statements, including whether sentences already imposed can be modified under § 3582(c)(2). See 28 U.S.C. § 994(a)(2)(C). Furthermore, the Commission is obligated "periodically [to] review and revise" the Guidelines, and, based on its findings, may submit proposed amendments to Congress which become effective on a specified date within a statutorily prescribed period, unless Congress modifies or disapproves of the proposed amendments. 28 U.S.C. § 994(p).

 If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall 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). Section 1B1.10 of the Guidelines contains the general policy statement of the Commission on the retroactivity of amendments to the Guidelines. U.S.S.G. § 1B1.10, p.s. (policy statement) (§ 1B1.10"). Section 1B1.10(a) provides that all amendments are prospective only, unless specifically enumerated in § 1B1.10(d).

 The Circuit has recently declined to rule whether the interplay of § 1B1.10 and 28 U.S.C. § 3582(c)(2) precludes the sentencing court from retroactively applying an amendment not listed in § 1B1.10(d). United States v. Colon, 961 F.2d 41, 45-46 (2d Cir. 1992); cf. United States v. Park, 951 F.2d 634, 636 (5th Cir. 1992) (retroactively applying Amend. 379 included in § 1.B1.10(d) while noting that courts might not be bound by such policy statements). This Court, however, concludes that § 1B1.10 is controlling based on the "explicity unusual power" conferred on the Commission to determine the retroactivity of guideline amendments as provided by Congress in 28 U.S.C. § 994(u).

 In addition, the policy statement of § 1B1.10 must be accorded significant weight because the Sentencing Commission intended to foreclose modifications of sentence under 18 U.S.C. § 3582(c)(2). "Where . . . a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable ...


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