The opinion of the court was delivered by: Sifton, Senior Judge.
Anthony Nunez ("Nunez") pleaded guilty on July 11, 2003 to conspiracy to distribute and possess with intent to distribute at least 50 grams of cocaine base, at least one kilogram of heroin, at least five kilograms of cocaine, and MDMA in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Now before this Court is the Court's sua sponte motion, pursuant to 18 U.S.C. § 3582(c)(2), to modify defendant's sentence. For the reasons stated below, defendant's sentence is modified and reduced to 66 months.*fn1
While incarcerated at the Metropolitan Detention Center awaiting sentencing in the above-captioned case, defendant was found in possession of marijuana and cocaine, and charged, under docket 03-CR-0990 ("MDC Case"), with violations of 18 U.S.C. § 1791(a)(2), (b)(1) and (3), and (c). He pleaded guilty to those charges on September 4, 2003.
At defendant's August 18, 2004, sentencing, in both the above-captioned case and the MDC Case, I adopted the factual findings and United States Sentencing Guidelines ("U.S.S.G." or "Guideline") calculation of the Presentence Investigation Report ("PSR"). Accordingly, I found defendant accountable for the equivalent of 41,125 kilograms of marijuana with a base offense level of 38.*fn2 With a two-level upward adjustment for possession of firearms and a three-level reduction for acceptance of responsibility, I found defendant's adjusted offense level to be 37. Based on a Criminal History Category ("CHC") of IV and the adjusted offense level of 37, I determined defendant's Guideline range for imprisonment to be 292 to 365 months. Based on defendant's substantial assistance, however, I departed from defendant's Guideline range and the 120 month statutory mandatory minimum and, in the above-captioned case, imposed a sentence of 82 months. In the MDC Case, I sentenced defendant to six-month terms on each of the two counts, to run consecutively to each other and the 82-month sentence.
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. 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 implements the retroactive application of Amendment 706, as amended by Amendment 711, effective March 3, 2008.
On February 13, 2008, the Court issued an order for the government to show cause why the defendant's sentence in the above-captioned case should not be modified. The government responded by letters dated March 10 and 12, 2008. Defendant submitted his response, through counsel, on March 24, 2008, and requested a sentence of time served.
Pursuant to 18 U.S.C. § 3582(c)(2), 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.*fn3 Because the Sentencing Commission voted to apply Amendment 706 retroactively, I may consider defendant's eligibility for a reduction in his sentence. Under the amended Sentencing Guidelines, defendant's adjusted offense level would be 35 which, with a CHC of IV, suggests, at the low end, a term of imprisonment of 235 months.
Generally, a reduced sentence may not be lower than the amended guideline range. U.S.S.G. § 1B1.10(b)(2)(A), p.s. However, U.S.S.G. § 1B1.10(b)(2)(B), p.s., provides that "[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guidelines range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline [sic] sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate." The government does not dispute that a further reduction of defendant's sentence may be appropriate under this provision.
Defendant's ultimate sentence was below the statutory minimum. As I could only impose a sentence below the statutory minimum sentence of 10 years pursuant to 18 U.S.C. § 3553(e), defendant's sentence was not a guidelines sentence. See United States v. Ortiz, No. 04 Cr. 268 (HB), 2008 WL 709488, at *5 (S.D.N.Y. Mar. 17, 2008) ("In sum, 18 U.S.C. § 3553(e) permits a court to impose a sentence below the statutory minimum . . . and U.S.S.G. § 5K1.1 permits a court to impose a sentence below the Sentencing Commission's Guideline minimum when the defendant has provided substantial assistance") (emphasis in original).
However, since I imposed a sentence below the statutory mandatory minimum based on defendant's substantial assistance and calculated the extent of the reduction of sentence on the original sentencing range of 292 to 365 months, defendant's original sentence was the functional equivalent of a guideline sentence. See United States v. Diaz, No. 02 Cr. 1327 (CPS), 2008 WL 789885, at *3 (E.D.N.Y. March 20, 2008). Although in sentencing defendant to 82 months I imposed a sentence below the statutory minimum based upon the authority granted by 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1 factors are instructive in determining how much of a departure below the statutory minimum is appropriate pursuant to § 3553(e) based on the defendant's substantial assistance. See Melendez v. United States, 518 U.S. 120, 129, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996)). Thus, this case presents an exception to the general rule limiting reduction of non-guideline sentences set forth in U.S.S.G. § 1B1.10(b)(2)(B), p.s. The 82-month sentence represents approximately 28% of the low end of the prior recommended guidelines sentence. Following U.S.S.G. § 1B1.10(b)(2)(B), p.s., 28% of 235 months would be 66 months.
Defendant has served approximately 63 months and argues for a sentence of time served. U.S.S.G. § 1B1.10, p.s, however, does not provide for a reduction below the amended Guideline range beyond the comparable reduction exception discussed above. Accordingly, any further reduction would not be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).
Reducing defendant's sentence to 66 months does not pose a threat to the community. The defendant will serve an additional 12 months of incarceration at the conclusion of his modified sentence, due to his conviction in the MDC Case. Moreover, although defendant claims he was born in Puerto Rico, verification was never received and, accordingly, Immigration and Customs Enforcement ("ICE") has lodged an immigration detainer against defendant to permit ICE to conduct an investigation. Depending on the speed of the investigation and its results, the defendant may ...