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UNITED STATES v. FERNANDEZ

February 3, 1997

UNITED STATES OF AMERICA, against JOSE FERNANDEZ, Defendant.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 This matter is currently before the Court on Jose Fernandez's pro se motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), or in the alternative to vacate his sentence pursuant to 28 U.S.C. § 2255. Because I conclude that Fernandez has not shown grounds for relief under either statute, his motion is denied.

 In 1990, a grand jury returned a four-count indictment against Fernandez and two co-defendants. Count One charged the defendants with conspiring to distribute one kilogram of crack. Count Two charged the defendants with possession with intent to distribute that same kilogram of crack within 1000 feet of a school. *fn1" Count Three charged the defendants with possession with intent to distribute approximately 30 grams of crack and 1000 grams of cocaine within 1000 feet of a school. *fn2" Count Four charged the defendants with using and carrying a firearm during and in relation to a drug trafficking crime. On December 19, 1990, following a jury trial, Fernandez and his co-defendants were convicted of Counts One, Two and Three, and acquitted on Count Four.

 The base offense level for Counts One, Two and Three, level 36, was determined by the specific quantity of drugs listed in each count, pursuant to the Drug Quantity Table in § 2D1.1(c). All three counts were then enhanced two levels for possession of a firearm pursuant to § 2D1.1(b)(1), and Counts Two and Three were enhanced an additional two levels pursuant to § 2D1.2(a)(1), since those counts involved a protected location. As a result, the adjusted offense level for Count One was level 38, and the adjusted offense level for Counts Two and Three was level 40. The counts were then grouped pursuant to § 3D1.2(b), and pursuant to § 3D1.3 the highest offense level in the group was used for sentencing purposes. Accordingly, Fernandez was sentenced using an adjusted offense level of 40 and a criminal history category of II, resulting in a prison term of 324 months, the minimum sentence under the applicable Guideline range.

 This Court's judgment was affirmed on appeal and Fernandez's subsequent petition for a writ of habeas corpus was denied. In his latest motion, Fernandez makes two arguments. First, Fernandez argues that his offense level should be reduced from 41 *fn3" to 38 pursuant to a recent amendment to the Sentencing Guidelines. Second, Fernandez asserts that "relevant conduct" was considered in arriving at his sentence, in violation of a recent amendment to the Sentencing Guidelines and "new constitutional standards." As discussed below, neither claim has merit.

 Amendment to the Drug Quantity Table

 Amendment 505 to the Sentencing Guidelines, which became effective November 1, 1994, reduced the upper limit of the Drug Quantity Table in § 2D1.1(c) to a base offense level of 38, rather than 42. On the basis of this amendment, Fernandez asserts that he is entitled to have his offense level reduced accordingly from level 40 to level 38. Although this amendment was made retroactive by § 1B1.10, it does not require a reduction in Fernandez's sentence.

 The Drug Quantity Table found in § 2D1.1(c) refers exclusively to base offense levels. Only individuals who were subject to a base offense level above 38 are eligible to have their base offense level reduced pursuant to the retroactive application of Amendment 505. Although Fernandez's final offense level was 40, his base offense level was only 36. Accordingly, Fernandez's first ground for the modification of his sentence is without merit. See United States v. Hanna, 942 F. Supp. 783, 1996 WL 204501 (E.D.N.Y. 1996).

 Relevant Conduct

 In his second argument, Fernandez contends that "relevant conduct" was inappropriately considered in arriving at his sentence. Fernandez asserts this argument pursuant to 18 U.S.C. § 3582(c)(2), arguing that a recent amendment to § 1B1.3 should apply to his case. In the alternative, Fernandez makes this argument regarding relevant conduct pursuant to 28 U.S.C. § 2255, asserting that this Court failed to find the relevant conduct considered during sentencing under a preponderance of the evidence standard, in violation of "new constitutional standards" established in Witte v. United States, 515 U.S. 389, 132 L. Ed. 2d 351, 115 S. Ct. 2199 (1995) and McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1985).

 1. Amendment 439 and Relevant Conduct under § 1B1.3

 Under 18 U.S.C. § 3582(c)(2) a court can reduce a defendant's sentence pursuant to a subsequently enacted amendment to the Sentencing Guidelines "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." To meet this standard and qualify for retroactive application, an amendment must be listed in § 1B1.10(c). U.S.S.G. § 1B1.10, Application Note 1. Conversely, amendments not listed in § 1B1.10(c) may not be applied retroactively. United States v. Caceda, 990 F.2d 707, 710 (2d Cir.), cert. denied, 510 U.S. 918 (1993); United States v. Rodriguez, 989 F.2d 583, 587-88 (2d Cir. 1993); Lobuglio v. United States, 1996 U.S. Dist. LEXIS 2724, 1996 WL 103842, *2 (S.D.N.Y. 1996).

 In his motion to modify his sentence under 18 U.S.C. § 3582(c)(2), Fernandez appears to rely on Amendment 439, which narrowed the definition of "relevant conduct" in § 1B1.3 and became effective after Fernandez was sentenced. However, Amendment 439 is not listed as a qualifying amendment in § 1B1.10(c) and therefore cannot be applied retroactively to reduce Fernandez's sentence. See Lobuglio, 1996 U.S. Dist. LEXIS 2724, 1996 WL 103842 at *2; United States v. Duran-Peralta, 1995 U.S. Dist. LEXIS 1196, *2, 1995 WL 43667, *1 (S.D.N.Y. 1995); United ...


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