The opinion of the court was delivered by: LEONARD WEXLER, Senior District Judge.
Defendant Marat Balagula ("Balagula") moves to modify his
sentence under 18 U.S.C. § 3582(c)(2). The government opposes
The background of this case is detailed in prior decisions of
this Court and the Second Circuit. See United States v. Macchia,
845 F. Supp. 953 (E.D.N.Y.), aff'd., 35 F.3d 662 (2d Cir. 1994);
Balagula v. United States, 73 F. Supp.2d 287 (E.D.N.Y. 1999).
Familiarity with those decisions is assumed. As detailed in this
Court's 1999 decision, Balagula pleaded guilty in this case,
referred to as the Macchia case, and was sentenced to 77 months'
imprisonment, to run consecutively to the 120 months'
imprisonment imposed by this Court following Balagula's
conviction in the earlier case, referred to as the Tarricone
case. Balagula v. United States, 73 F. Supp.2d at 289-90.
Balagula now moves to modify his sentence in the Macchia case,
claiming that this Court is obligated to modify his sentence
based on an amendment to the commentary to United States
Sentencing Guidelines ("USSG") § 5G1.3(b), namely Amendment
645, which requires the Court to impose a concurrent term of
imprisonment on a defendant who, when sentenced, is subject to an
undischarged term of imprisonment resulting from an offense that
has been fully taken into account in the offense level
determination, see U.S. Sentencing Guidelines Manual, Supp. to
app. C., at 282 (2002). The government argues
that the motion is without merit because (1) there has been no
amendment to § 5G1.3(b) since Balagula's sentence, and any
amendment to the commentary does not afford him the relief he
seeks; (2) there has been no amendment to a guideline section
which allows a reduction in the term of imprisonment under
§ 1B1.10(c); and (3) any modification, even if it were
available, would be in the Court's discretion and the
circumstances do not warrant a modification.
Upon consideration, the Court agrees with the government that
Balagula's motion is without merit. First, there has been no
amendment to § 5G1.3(b). Second, even if an amendment to
commentary could be sufficient for a modification of sentence,
the amendment to the commentary to § 5G1.3(b), Amendment 645,
is not relevant to Balagula's sentence. The amended commentary
deals with a downward departure under § 5G1.3(b) in "the case
of a discharged term of imprisonment" to allow a downward
departure where § 5G1.3(b) would have applied if the term of
imprisonment had not been discharged a circumstance not
Third, § 3582(c)(2), under which Balagula purports to bring
this motion, authorizes modification of a sentence based on a
sentencing range subsequently lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). However, "[e]ligibility
for consideration under 18 U.S.C. § 3582(c)(2) is triggered
only by an amendment listed in [USSG § 1B1.10(c)] that lowers
the applicable guideline range." USSG § 1B1.10(c) cmt. n. 1;
see United States v. Perez, 129 F.3d 255, 259 (2d Cir. 1997).
Section 1B1.10(c) does not list Amendment 645, upon which
Balagula relies. Accordingly, § 3582(c)(2) is inapplicable.
Fourth, even if modification were authorized as Balagula
claims, the circumstances do not warrant the Court, in the
exercise of its discretion, to modify the sentence.
Based on the foregoing, Balagula's motion is denied.
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