The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge
MEMORANDUM OPINION AND ORDER
Elizabeth Cruz ("Cruz" or "defendant") pleaded guilty on July 19, 2002 to conspiring to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A)(iii). On May 20, 2003, this Court sentenced defendant to a 78-month term of incarceration and a 3-year term of supervised release.*fn1 Defendant is currently scheduled for release on September 23, 2008. Now before this Court is defendant's motion for modification of her sentence, pursuant to 18 U.S.C. § 3582(2)(c). For the reasons set forth below, defendant's motion is denied.
Defendant was charged with participation in a powder and crack cocaine distribution conspiracy headed by Francisco Aponte, defendant's common-law husband. Aponte and defendant have two children. As described in the Presentence Investigation Report ("PSR"), the factual findings of which the Court adopted, Aponte ran the operation. In exchange for supporting her and her two children, Aponte asked defendant to assist him by counting money, and weighing and packaging drugs.
Defendant pleaded guilty on July 19, 2002 pursuant to a plea agreement. At defendant's May 20, 2003 sentencing, the government declined to file a motion pursuant to Section 5K1.1 of the United States Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") since the defendant had been arrested on new, drug related charges. The Court, adopting the PSR's findings, found defendant accountable for 1,756.07 grams of crack-cocaine and for 758.821 grams of powder cocaine. Converting these amounts to marijuana, pursuant to U.S.S.G. § 2D1.1, the Court found defendant accountable for the equivalent of 35,273.164 net kilograms of marijuana. Accordingly, the base offense level for defendant's conduct was set at a level of 38.
The Court further determined that a three-level reduction for acceptance of responsibility was not warranted, due to the defendant's subsequent arrest. May 20, 2003 Sentencing Transcript, at 14 (hereinafter "Tr. at ___"). The Court also agreed with the PSR's conclusion that defendant was not entitled to a minor role reduction. Id. However, the Court found that defendant was entitled to application of U.S.S.G. § 2D1.1(6) (2003), the so-called 'safety valve.' Id. The Court then stated that the appropriate offense level appeared to be 30, which, with the safety valve reduction, resulted in a total offense level of 28. Tr. at 15. After asking both sides if the guidelines calculation were correct and receiving no objection, based on an adjusted offense level of 28 and a Criminal History Category ("CHC") of I, I sentenced defendant to a 78-month term of incarceration, at the bottom of what I took to be the applicable guideline range.*fn2
On November 1, 2007, Amendment 706, as further amended by Amendment 711, to U.S.S.G. § 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy, took effect.*fn3 Amendment 706 generally reduces by two levels the base offense levels applicable to cocaine base ("crack") offenses. On December 11, 2007, the United States Sentencing Commission (the "Sentencing Commission") voted to apply the amendment retroactively to crack offenses, effective March 3, 2008. The Sentencing Commission also promulgated amendments to Policy Statement § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guidelines Range, which will implement the retroactive application of Amendment 706, as amended by Amendment 711, effective March 3, 2008 ("Policy Statement").
On January 9, 2008, defendant moved, through her counsel, for the modification of her sentence based on these amendments.
"A district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007). Pursuant to 18 U.S.C. § 3582(c)(2), however, the Court may modify the sentence of a defendant whose term of imprisonment was based on a sentencing range that has since been lowered by the Sentencing Commission.*fn4
A district court may, however, reduce a term of imprisonment only if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); see also 28 U.S.C. § 994(u) (if the Sentencing Commission reduces the term of imprisonment recommended for a particular offense or category of offenses, it "shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced").
U.S.S.G. § 1B1.10, p.s. (effective March 3, 2008), the applicable policy statement in this case, provides for several limitations or exclusions on the reduction of a term of imprisonment following an amendment to the Sentencing Guidelines. One exclusion provides that a "reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if - . . . an ...