United States District Court, S.D. New York
November 21, 2005.
UNITED STATES OF AMERICA, Petitioner,
ALFRED BOTTONE, JR., Defendant.
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION & ORDER
Alfred Bottone, Jr., moves this Court for a modification of his
sentence pursuant to 18 U.S.C. § 3582 (c) (2). Specifically, He
argues that under Amendment 591 to the U.S. Sentencing
Guidelines, "his sentence should be modified to reflect the
correct guideline provision for the crime of conviction and
not for the underlying offense conduct." (Mot. for Modification
of Sentence Pursuant to 18 U.S.C. 3582(c) (2), at 4.) Bottone
cites United States v. Rivera, 293 F.3d 584 (2d Cir. 2002), in
support of his motion. Petitioner, however, engages in the same
reasoning the Second Circuit rejected in Rivera. For the
reasons set forth below, his motion is denied.
In 1994, a jury in this District convicted Bottone of
conspiracy to distribute large amounts of heroin in violation of
21 U.S.C. § 846. In sentencing Bottone, this Court selected the
appropriate offense guideline for a conspiracy to distribute heroin, § 2D1.1. The Court then selected Bottone's base offense
level within § 2D1.1, and sentenced Bottone to 360 months
Bottone argues that his base offense level would have been
lower, resulting in a sentencing range of 151-188 months, had the
Court relied only on the "actual convicted conduct and not
offense conduct in determining an offense level under 2D1.1(c)."
(Mot. for Modification of sentence Pursuant to 18 U.S.C. 3582(c)
(2), at 5.) It is worth noting that Bottone does not dispute the
Court's selection of offense guideline § 2D1.1. Rather, he argues
that the Court selected the wrong offense level within guideline
§ 2D1.1 by impermissibly relying on its finding of the quantity
of heroin involved in the conspiracy. As Rivera makes clear,
Bottone's reasoning is logically flawed:
This confuses two distinct steps taken to arrive at a
guidelines sentence:  selection of the applicable
offense guideline, and  selection of the base
offense level within that applicable offense
guideline. The plain wording of Amendment 591 applies
only to the choice of the applicable offense
guideline, not to the subsequent selection of the
base offense level.
Rivera, 293 F.3d at 586. Accordingly, because the Court
selected the "applicable offense guideline in accordance with the
procedure set out in Amendment 591," and Amendment 591 does not
bear on how the base offense level is selected within that
guideline, Bottone's motion for a modification of his sentence is
denied. Id. at 587. SO ORDERED.
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