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U.S. v. LUCAS

United States District Court, S.D. New York


April 5, 2004.

THE UNITED STATES OF AMERICA, Plaintiff -against- BENJAMIN LUCAS, Defendant

The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Benjamin Lucas, pro se, moves pursuant to 18 U.S.C § 3582 to resentence on the grounds that Amendments 657 and 662 to the United States Sentencing Guidelines ("U.S.S.G.") may retroactively require a lesser sentence than originally imposed by this Court. Lucas pleaded guilty before this Court to a violation of 21 U.S.C. § 846 for conspiracy to violate the federal narcotics laws in connection with his dealings in hydromorphone (Dilaudid), a controlled substance. Specifically, Lucas contends that the portion of Amendment 657 regarding the weight of Oxycodone, a controlled substance, applies to his sentence for conspiracy to distribute and possess with intent to distribute Dilaudid. Because those Amendments do not apply to Lucas' conviction and sentence, his motion is denied. PROCEDURAL BACKGROUND

Lucas pleaded guilty before this Court on November 6, 2000 to one count of conspiring to distribute and possess with intent to distribute a quantity of hydromorphone (Diluadid), a Schedule n controlled substance, pursuant to 212 C.F.R. § 1308.12, in violation of 21 U.S.C. § 812, 841(a)(1), and 841(b)(1)(C). On July 12, 2001, this Court imposed a sentence upon him of 70 months' imprisonment, a $100 special assessment, and supervised release of three years. He now moves this Court pursuant to 18 U.S.C. § 3582(c)(2) "to have a laboratory determine the actual weight of the Oxycodone in the tablets that led to the guilty plea and subsequent sentence in this instant motion . . ." and if appropriate, to impose a lesser sentence pursuant to Amendments 657 and 662. (PL Mot at 2), Section 3582 (cX2) states in relevant part: "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . ., upon motion of the defendant, the court may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

 INAPPLICABILITY OF AMENDMENTS 657 AND 662

  Lucas' stated ground for resentencing is not applicable to his sentence. Because Amendments 657 and 662 only address Oxycodone, not Dalaudid (hydromorphone), plaintiff attempts to connect Oxycodone and Dalaudid by contending that "Oxycodone is . . . found in certain prescription pain relievers such as . . . Dalaudid and Oxycontin [sic] and are generally sold as tablets." (Pl. Mot at 2). Yet, plaintiff's assertion that Oxycodone is found in Dalaudid is both incorrect and fatal to his motion. In fact, these are distinct substances according to federal government classifications, with plaintiff being convicted of a conspiracy involving Dalaudid only.

  The active ingredient in Dalaudid (the proprietary name) is hydromorphone hydrochloride; oxycodone hydrochloride, on the other hand, is a distinct active ingredient found in Oxycodone. See Approved Drug Products with Therapeutic Equivalence Evaluations, Orange Book query, at http://www.accessdata.fda.gov (last visited Mar. 30, 2004). Though members of the same class of drugs,*fn1 federal regulations classify hydromorphone and oxycodone as two distinct Schedule II controlled substances. See 21 C.F.R. § 1308.12.

  Because Lucas was convicted of a conspiracy involving Dalaudid, not oxycodone, Amendments 657 and 662 are irrelevant to his conviction and cannot affect the sentence this Court imposed in July of 2001.

 CONCLUSION

  For the reasons set forth above, plaintiff's motion to resentence pursuant to 18 U.S.C § 3582(c)(2) is denied.

  SO ORDERED.


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