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