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U.S. v. BOTTONE

United States District Court, S.D. New York


November 21, 2005.

UNITED STATES OF AMERICA, Petitioner,
v.
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 imprisonment.

  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: [1] selection of the applicable offense guideline, and [2] 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.

20051121

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