The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
Defendant Hector Ramirez moves the Court to grant him an additional
two level decrease, from Level 28 to Level 26, and to reduce his sentence
from 78 months to 63 months in accordance with Amendment 640 to United
States Sentencing Guideline § 2D1.1(b)(6), which became effective
November 1, 2002.
On October 21, 1999, the Court entered a judgment of conviction against
the defendant based on his plea of guilty on December 10, 1998 to one
count of conspiracy to distribute heroin and one count of possession with
intent to distribute heroin in violation of 21 U.S.C. § 846 and
841(b)(1)(A). (Judgment #99, 2558, filed Oct. 25, 1999.) Defendant
pleaded guilty (Tr. of Dec. 10, 1998 Plea Hearing at 15, 17) pursuant to
a plea agreement that stipulated to his involvement in a conspiracy to
sell at least ten, but less than thirty, kilograms of heroin.
(See Revised Pre-Sentence Investigation Report, dated Sept. 7,
1999 ("PSR"), ¶¶ 5(b), 79.)
Defendant is not entitled to a two level reduction in his sentence. As
shown in the PSR, the defendant's base offense level was 36 (U.S.S.G.
§ 2D1.1(c)(2)), from Which a deduction of
three levels was made pursuant to U.S.S.G. § 3B1.2 based on his
minor to minimal role in the offense. (See PSR at 13-14; Tr. of
Oct. 21, 1999 Sentencing Hearing ("Sentencing Tr."), at 9.) A deduction
of two levels was made pursuant to U.S.S.G. § 2D1.1(b)(6) because the
defendant met the criteria set forth in subdivisions (1)-(5) of U.S.S.G.
§ 5C1.2 (the "Broderick provision" or "safety valve"),*fn1 to reach
an adjusted offense level of 31. (See PSR at 13-14; Sentencing
Tr. at 9.) From there, three levels were deducted under U.S.S.G. §
3E1.1 for Defendant's acceptance of responsibility, to arrive at a total
offense level of 28, which called for a sentence of 78 to 97 months under
the 1998 guidelines, as the defendant was in Criminal History Category I.
(See PSR at 14; Sentencing Tr. at 9.) The Court in fact
sentenced Defendant to 78 months, the minimum sentence under the
guidelines. (Sentencing Tr. at 11.)
In view of the defendant meeting the five criteria of U.S.S.G. §
5C1.2 and because defendant's offense level was above level 26, under
U.S.S.G. § 2D1.1(b)(6) (1998), the Court was empowered to sentence
the defendant, not to the applicable mandatory minimum of 120 months, but
to 78-97 months. In the 1998 U.S.S.G., Section 2D1.1(b)(6) reads in full:
If the defendant meets the criteria set forth in
subdivisions (1)-(5) of § 5C1.2 (Limitation on
Applicability of Statutory Minimum Sentences in
Certain Cases) and the offense level determined
above is level 26 or greater, decrease by 2
U.S.S.G. § 2D1.1(b)(6) (1998).
Defendant incorrectly argues that he "did not receive a downward
adjustment under U.S.S.G. § 2D1.1(b)(6) because he was not subject to
a mandatory minimum sentence." (Def.'s Mot. for Modification, dated Nov.
27, 2002, at 2.) As the Court noted at time of sentence,
defendant, in fact, was subject to the statutory mandatory minimum
often years. (Sentencing Tr. at 8.)
Defendant's motion is based on Amendments 624 and 640 to U.S.S.G. §
2D1.1(b)(6), which became effective November 1, 2001 and November 1,
2002, respectively. Effective November 1, 2001, Amendment 624 struck from
U.S.S.G. § 2D.l(b)(6) the language "and the offense level determined
above is level 26 or greater," so that a defendant no longer needed to
have an adjusted offense level of at least 26 to be eligible for the
Broderick provision. See U.S.S.G. § 2D1.1(b)(6) (2001)
(Reason for Amendment, Amendment 624) ("This amendment expands the
eligibility for the two level reduction in subsection (b)(6) of §
2D1.1 . . . for persons who meet the criteria set forth in §
5C1.2 . . . to include defendants with an offense level less than level
26 [because] limiting the applicability of this reduction to defendants
with an offense level of level 26 or greater is inconsistent with the
general principles underlying this two level reduction.").
Effective November 1, 2002, Amendment 640 amended the Commentary to
§ 2D1. l(b)(6), which added the following language under Application
Note 21: "The applicability of subsection (b)(6) shall be determined
without regard to whether the defendant was convicted of an offense that
subjects the defendant to a mandatory minimum term of imprisonment."
U.S.S.G. § 2D1.1(b)(6) (2002) (Commentary); see also
U.S.S.G. § 2D1.1(b)(6) (2002) (Reason for Amendment, Amendment 640)
("The amendment provides an application note that clarifies that the two
level reduction under 2D1.1(b)(6) does not depend on whether the
defendant is convicted under a statute that carries a mandatory minimum
term of imprisonment.").
In this case, defendant has already received the benefit of a two-level
2D1.1(b)(6) and thus is not entitled to any benefit from the recent
amendments to § 2D1.1(b)(6). Amendment 624, if it were retroactive,
would only apply to a defendant who had not previously received a
two-point reduction because he had an offense level under 26.
Furthermore, the defendant's motion must be denied because the courts
are not permitted to give retroactive application to Amendments 624 or
640. Title 18, United States Code, Section 3582(c)(2) allows a reduction
of a term of imprisonment if the defendant's sentence was based on a
sentencing range which was subsequently lowered by the Sentencing
Commission only if the Amendment is listed in U.S.S.G. § 1B1.10(c).
United States v. Perez. 129 F.3d 255, 258-259 (2d Cir. 1997)
(citing 18 U.S.C. § 3582(c)(2)). Amendments 624 and 640 are not
listed in U.S.S.G. § 1B1.10(c) of the sentencing guidelines. U.S.S.G.
§ 1B1.10(c). Accordingly, the Court is not permitted to give them
In short, the defendant has shown no grounds to convict or reduce the
sentence imposed on October 21, 1999 under 18 U.S.C. § 3582, U.S.S.G.
§ 2D1.1(b)(6), or Rule 35 of the Federal Rules of Criminal ...