United States District Court, S.D. New York
September 28, 2004.
UNITED STATES OF AMERICA, Plaintiff,
JOSE SILVA, a/k/a "Jose Felipe Silva," ABSALON GONZALEZ, a/k/a "Absalon Gonzalez-Jimenez," and CARLOS CORREA, a/k/a "Carlos Luis Correa," Defendants.
The opinion of the court was delivered by: JOHN SPRIZZO, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendants in the above-captioned action have submitted pro
se Letter Briefs dated January 10, 2002, November 30, 2002, and
November 21, 2002, respectively, to the Court seeking reductions
in their sentences imposed by this Court in March and April 1996.
The Government has submitted a Memorandum of Law dated April 17,
2003 in opposition to defendants' briefs, arguing that the Court
is without jurisdiction to grant the reduction that defendants
seek. Because the Court agrees that it lacks jurisdiction to
reduce defendants' sentences, the Court denies defendants'
On May 12, 1995, after a two-week jury trial, defendants were
found guilty of one count of conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846, and one count of possession with
intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1),
and 841(b)(1)(A), as well as 18 U.S.C. § 2. Defendant Silva was sentenced on March 26, 1996 to a
term of 235 months imprisonment, based on a sentencing guidelines
base offense level of 38. Defendants Gonzalez and Correa, who
were sentenced on March 13, 1996 and April 1, 1996, respectively,
were each sentenced to 210 months imprisonment after this Court
adjusted their base offense level to 36 to reflect their minor
roles in this criminal activity.
Each of the defendants now move to reduce their respective
sentences in light of amendments to the United States Sentencing
This Court has been granted jurisdiction to modify terms of
imprisonment by 18 U.S.C. § 3582(c).*fn1 In instances when
sentencing ranges have been lowered by the Sentencing Commission
subsequent to sentencing, § 3582(c)(2) permits the Court to
"reduce the term of imprisonment," but only "if such a
reduction is consistent with applicable policy statements issued
by the Sentencing Commission." Id. (emphasis added).
Section 1B1.10 of the United States Sentencing Guidelines
provides the relevant policy statement. That section provides:
Where a defendant is serving a term of imprisonment,
and the guideline range applicable to that defendant
has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in
subsection (c) below, a reduction in the defendant's
term of imprisonment is authorized under
18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is
applicable, a reduction in the defendant's term of
imprisonment under 18 U.S.C. § 3582(c)(2) is not
consistent with this policy statement and thus is not
Id. § 1B1.10(a). Therefore, subsection (c) of this section
lists the only amendments that this Court has the jurisdiction,
under 18 U.S.C. § 3582(c)(2), to apply retroactively. See,
e.g., United States v. Perez, 129 F.3d 255, 258-59 (2d Cir.
1997) (finding § 3582 inapplicable because the amendment that the
defendant relied upon was not listed in § 1B1.10(c) of the
In this case, defendants rely on amendment 640 to the
Sentencing Guidelines. Effective as of November 1, 2002, this
amendment modified § 2D1.1(a)(3) of the Guidelines by providing
that defendants who received mitigating role adjustments in drug
trafficking cases would be limited to a base offense level of 30.
Defendants thus request that their sentences be reduced in accord
with this provision to a term of imprisonment between 97 and 121
months. See U.S.S.G. § 5.A.
A glance at § 1B1.10(c) reveals that amendment 640 is not one
of the listed amendments. As such it does not meet the
requirements of the Sentencing Commission's policy statement,
and, more importantly, it therefore does not allow this Court to
exercise jurisdiction pursuant to 18 U.S.C. § 3582(c)(2). See
Perez, 129 F.3d at 258-59.
Defendant Silva's reliance on amendment 640 is also misplaced
for another reason. Having not received a mitigating role
adjustment at sentencing, Silva does not fulfill the prerequisite
for application of the amendment. U.S.S.G. app. C, amend. 640
(limiting the base offense level only for those defendants who
received a mitigating role adjustment). Silva seeks to overcome
this impediment by contending that he now deserves a mitigating
role adjustment pursuant to amendment 635 to the Sentencing
Guidelines. Amendment 635, which modified the commentary to
U.S.S.G. § 3B1.2, cleared up an uncertainty that existed in the
availability of mitigating role adjustments. U.S.S.G. app. C,
amend. 635. Amendment 635 is not listed in § 1B1.10(c).
Therefore, it, like amendment 640, cannot be applied
retroactively on a motion to modify sentence pursuant to §
Defendants attempt to clear this straightforward statutory
hurdle by arguing that amendments 635 and 640 are "clarifying
amendments" and thus may be applied retroactively on a motion to
modify sentence, despite their absence from § 1B1.10(c). This
argument is without merit. As the Second Circuit made clear in
United States v. Perez, § 3582(c)(2) relief is only available
where the amendment that is relied upon is listed in § 1B1.10(c).
Perez, 129 F.3d at 258-59. There is no exception in this
provision for clarifying amendments. See id.; see also
United States v. Baez, 89 Cr. 133, 2002 U.S. Dist. LEXIS 9869,
at *4 (S.D.N.Y. May 31, 2002); Vasquez v. United States, No. 89
Cr. 478, 2001 U.S. Dist. LEXIS 7831, at *11 (S.D.N.Y. June 12,
2001) ("The Second Circuit . . . has specifically declined to
retroactively apply clarifying but non-Section 1B1.10 amendments
on motions for modification."). Therefore, this argument must be
rejected and this Court is without jurisdiction to reduce the
defendants' sentences.*fn2 CONCLUSION
For the foregoing reasons, the Court denies defendants' motions
for reductions of their respective sentences.
It is SO ORDERED.