The opinion of the court was delivered by: Sifton, Senior Judge
Cecil Simon was convicted in 1990 of one count of conspiring to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846 and one count of using a firearm in relation to that conspiracy in violation of 18 U.S.C. § 924(c)(1). Simon was sentenced primarily to 322 months imprisonment and 4 years of supervised release. This Court subsequently vacated defendant's § 924(c)(1) conviction. On March 15, 2005, Simon was re-sentenced principally to a term of 262 months imprisonment and five years supervised release. Presently before this Court is Simon's motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).*fn1 For the reasons that follow, Simon's motion is denied.
The following facts are drawn from the record of the prior proceedings before the undersigned and the parties' submissions in connection with this motion.
Simon was arrested in February 1990, and was indicted on March 15, 1990, on various narcotic and drug offenses revealed by a December 6, 1988 search of his home. Simon was thereafter convicted after trial of one count of conspiring to distribute and possess with intent to distribute in excess of 50 grams of cocaine base ("crack") in violation of 21 U.S.C. § 846 and one count of using firearms during and in relation to that conspiracy in violation of 18 U.S.C. § 924(c)(1). He was acquitted of possession of cocaine base with the intent to distribute.
On August 14, 1990, I sentenced Simon to 322 months of imprisonment. I calculated that Simon's base offense level for the narcotics offense was 36 due to his participation in a conspiracy involving 660 grams of crack. I adjusted that level upward one level to account for Simon's obstruction of justice as a result of his attempt to alter his handwriting when giving a handwriting exemplar for use at his trial. Given Simon's criminal offense history of III, the resulting Guidelines sentencing range for the narcotics offense was 262 to 327 months imprisonment. I sentenced Simon to 262 months on the drug count plus a consecutive statutory 60 month term of imprisonment on the firearms count, for a total term of 322 months. In addition, I imposed four years of supervised release and a special assessment of $100. The Second Circuit affirmed Simon's sentence and conviction on April 3, 1991. See United States v. Simon, 932 F.2d 955 (2d Cir. 1991) (table).
In 1996, Simon filed a motion pursuant to 18 U.S.C. § 3582(c)(2), seeking to vacate his weapons conviction in light of Bailey v. United States, 516 U.S. 137, 150 (1995). I observed that Simon's motion could not be granted pursuant to § 3582 and that § 2255 relief had become unavailable because of a previous § 2255 motion. I did not dismiss the application on that basis, but construed petitioner's § 3582 motion as a § 2241 petition. I vacated Simon's § 924(c)(1) conviction in light of the Government's concession that Bailey rendered it invalid, and held that he would be re-sentenced on his drug conspiracy conviction.
In calculating a new sentence, I began with the offense level 37 as required by Simon's conspiracy conviction and obstruction of justice enhancement. I then added a two-point enhancement pursuant United States Sentencing Guideline ("U.S.S.G.") § 2D1.1(b)(1), which required a two-level increase in a defendant's offense level "if a dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). This resulted in a final offense level of 39 and a sentencing range of 324 to 405 months. In recognition of Simon's original 322 month sentence, I departed downward, with the Government's consent, and imposed a 322-month term of imprisonment, which was equal to Simon's original sentence.
Simon appealed the sentence, and the Second Circuit held that "in view of the various potential obstacles to relief on successive § 2241 petitions, and in the absence of Simon's consent" the "sua sponte recharacterization of his § 3582 motion as a § 2241 petition was improper." Simon v. United States, 359 F.3d 139, 145 (2d Cir. 2004). The Second Circuit vacated the case and remanded "to give Simon an opportunity to decline to have his § 3582 motion converted into a § 2241 petition." Id. This Court was instructed that if Simon agreed to proceed pursuant to § 2241, the "district court should act on the converted § 2241 petition." Id. at 145 n.12. Although Simon had raised various other claims on appeal regarding his sentence, including the validity of the two-point firearms enhancement, the Second Circuit did not address the validity of those claims.
Simon advised this Court that having been apprised of the consequences of the conversion, he consented and wished to proceed pursuant to § 2241. Simon argued that his weapons conviction should be vacated as it was in the previous § 3582 application, and that he should have been re-sentenced on the drug conspiracy charge de novo; the Government concurred on both these points. Because of the Supreme Court's intervening decision in United States v. Booker, 125 S.Ct. 738 (2005), Simon also sought a reduction in his sentence.
On March 15, 2005, Simon was re-sentenced to a non-guideline sentence. The Sentencing Guidelines again started with a total offense level of 39 after upwardly adjusting his base offense level by one level due to Simon's obstruction of justice and by two levels because of Simon's possession of a firearm. Given Simon's criminal offense history of III, the recommended Sentencing Guidelines range was 324 to 405 months imprisonment.
I chose to impose a non-guideline sentence because I found that the recommended Sentencing Guidelines range of 324 to 405 months substantially overstated the seriousness of crack offenses, when compared with offenses involving comparable quantities of powder cocaine. After taking into consideration the § 3553(a) factors, I concluded that a sentence of 262 months imprisonment to be followed by five years supervised release was sufficient but not greater than necessary to accomplish the objectives of sentencing.
On November 1, 2007, Amendment 706, as further amended by Amendment 711, to U.S.S.G. § 2D1.1 took effect. Amendment 706 generally reduces by two levels the base offense levels applicable to crack offenses. On December 11, 2007, the United States Sentencing Commission (the "Sentencing Commission") voted to apply the amendments to U.S.S.G. § 2D1.1 retroactively, effective March 3, 2008. The Sentencing Commission also promulgated amendments to Policy Statement § 1B1.10, which implemented the retroactive application of amended U.S.S.G. § 2D1.1, as of March 3, 2008.
On February 11, 2008, pursuant to 18 U.S.C. § 3582(c)(2), I held that the sentence of Simon's co-defendant Michael Anthony Wood should be reduced to 212 ...