UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
February 23, 2009
UNITED STATES OF AMERICA,
ANTONE PORTER, DEFENDANT.
The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Antone Porter (the "defendant") was convicted on November 2, 2004 of conspiracy to distribute more than 0.25 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1). At sentencing, I found, by a preponderance of the evidence, that the amount of cocaine base involved in the conspiracy was more than 50 grams. Defendant was sentenced on June 30, 2005 to the mandatory minimum of ten years (120 months). Thereafter, the Second Circuit decided United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005), which held that a statutory mandatory minimum sentence can only apply if the 50 gram quantity is proven to a jury beyond a reasonable doubt. On April 20, 2006, defendant was re-sentenced to a term of 94 months. Presently before this Court is defendant's motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2),*fn1 and because of an allegedly erroneous criminal history calculation. For the reasons that follow, defendant'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.
Defendant was arrested on August 13, 2003 and indicted on August 7, 2004 on one count of drug conspiracy. The original indictment was superceded by an October 15, 2004 indictment, which named the defendant on an identical count, and on November 3, 2004, defendant was convicted of one count of conspiracy to distribute and to possess with intent to distribute cocaine base and marijuana in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(iii) and (b)(1)(D)(iii). The jury found that the drug quantity involved as to defendant was more than 0.25 grams of cocaine base.
On June 30, 2005, I sentenced defendant to the mandatory minimum sentence of ten years (120 months) with 5 years supervised release. Considering the trial evidence as well as evidence from the plea-allocutions of defendant's co-defendants, I found, by a preponderance of the evidence, that the amount of cocaine base involved in the conspiracy was more than 50 grams. I calculated that defendant's base offense level was 32 due to his participation in a conspiracy involving more than 50 grams of cocaine base, which was reduced to 28 in light of defendant's minimal level of participation, pursuant to United States Sentencing Guideline ("U.S.S.G.") § 3B1.2. Given defendant's criminal offense history level of VI, the resulting Guidelines sentencing range for the narcotics offense was 140 to 175 months imprisonment. I chose to impose a non-Guideline sentence because I found that the recommended Sentencing Guidelines range substantially overstated the seriousness of cocaine base offenses, when compared with offenses involving comparable quantities of powder cocaine. Applying a 10- or 20-to-1 ratio of cocaine base to powder cocaine rather than a 100-to-1 ratio, I determined that defendant's base offense level was 24 after the U.S.S.G. § 3B1.2 reduction, resulting in a sentencing range of 100 to 125 months. After taking into consideration the § 3553(a) factors, I concluded that the mandatory minimum sentence of 120 months, followed by five years of supervised release and a special assessment of $100, was sufficient but not greater than necessary to accomplish the objectives of sentencing.
Thereafter, the Second Circuit decided United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005), in which it held that a statutory mandatory minimum sentence can only apply if the drug quantity is proven to a jury beyond a reasonable doubt. The government consented to a remand for re-sentencing in light of Gonzales. On April 13, 2006, I re-sentenced defendant to a 94-month prison term, three years of supervised release, a $100 assessment fee, and no fine. In determining this sentence, I used a Sentencing Guideline level of 24 without objection from either party. I reached this level using the same Sentencing Guidelines calculations and the same downward departure from the Guidelines range to account for the adjusted ratio between crack cocaine and powdered cocaine that I used at the June 30, 2005 sentencing. In light of defendant's criminal offense history level of VI, the resulting Guidelines sentencing range for the narcotics offense was 100 to 125 months imprisonment. After considering the § 3553(a) factors, I concluded that a sentence at the bottom end of this range was sufficient. However, I noted that had I imposed this sentence at the original June 30, 2005 sentencing hearing, six months of defendant's state court sentence, which he served, would have been credited against the sentence I imposed. Therefore, I imposed a reduced sentence of 94 months, to be followed by a three-year period of supervision and a $100 special assessment fee.
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 July 21, 2008, defendant filed a motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). Thereafter, on December 31, 2008, defendant filed a letter requesting a reduction in his sentence on the grounds that his criminal history had been incorrectly calculated in the presentence investigation report.
Reduction pursuant to 18 U.S.C. § 3582(c)(2)
Pursuant to 18 U.S.C. § 3582(c)(2), this 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. 18 U.S.C. § 3582(c)(2). With respect to the retroactive application of amended U.S.S.G. § 2D1.1, the Sentencing Commission advises that reductions in sentences for defendants whose original term of imprisonment constituted a non- Guideline sentence pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), are generally not appropriate. U.S.S.G. § 1B1.10(b)(2)(B).
Under the amended Guidelines, defendant's base offense level is 30 due to his participation in a conspiracy involving more than 50 grams of cocaine base, which is reduced to 26 in light of U.S.S.G. § 3B1.2. Given defendant's criminal history level of VI, the applicable sentencing range under the amended Guidelines would be 120 to 150 months, which is lower than the previously applicable range of 140 to 175 months, but higher than the non-Guideline sentence actually imposed in April of 2006. Although the revised sentencing range for defendant's offense is lower than the range from which I departed in 2006, a further reduction of defendant's sentence is generally not appropriate in light of U.S.S.G. § 1B1.10(b)(2)(B). See United States v. Simon, No. CR-90-216, 2008 WL 820026 (E.D.N.Y. Mar. 25, 2008) (declining to impose further reduction on non-Guideline sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of U.S.S.G. § 1B1.10(b)(2)(B)).
At oral argument on September 4, 2008, counsel for the government consented to defendant's application for re-sentencing based on the revised crack cocaine Guidelines.*fn2 Transcript of September 4, 2008 proceedings ("Tr.") at 6-8. Nevertheless, government consent does not alter the import of U.S.S.G. § 1B1.10(b)(2)(B). See, e.g., United States v. Reid, 566 F.Supp.2d 888, 894-95 (E.D. Wis. 2008) (finding that notwithstanding the government's position that defendant was eligible for a § 3852(c)(2) reduction, because the sentencing judge had "considered the crack/powder disparity in the original sentence and granted a 2 level variance based in part on this factor . . . a further reduction would not promote respect for the law"); see also Simon, 2008 WL 820026, at *4 (declining to reduce defendant's sentence further because defendant had "already had the benefit of a re-evaluation of the seriousness of crack offenses to a degree greater than that afforded in the Sentencing Commission's recent amendment"). Because I took into account the disparity between Guideline sentences for cocaine base and powder cocaine offenses at defendant's April 13, 2006 re-sentencing, a further reduction of defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2) is not appropriate because it would not promote respect for the law.
Reduction Based on Erroneous Criminal History Calculation
In his letter of December 31, 2008, defendant requests a reduction in his sentence on the grounds that his criminal history was incorrectly calculated in the presentence investigation report. The provisions of 18 U.S.C. § 3582(c) and Rule 35 of the Federal Rules of Criminal procedure pertain to the modification of an imposed term of imprisonment. Because 18 U.S.C. § 3582(c) has no bearing here,*fn3 I construe defendant's motion as a Rule 35 motion for a reduction of sentence.
Rule 35(a)*fn4 provides that "[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed. R. Crim. P. 35(a). The seven-day statute of limitations acts as a strict procedural bar to motions made after the seven days have elapsed, depriving the district court of jurisdiction over the untimely motion. See, e.g., United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2d Cir. 1995) ("We have held, as have several other circuits, that the seven-day period provided for in Rule 35(c) is jurisdictional") (citing United States v. Werber, 51 F.3d 342, 348 (2d Cir. 1995); United States v. Lopez, 26 F.3d 512, 519 n.8 (5th Cir. 1994); United States v. Morillo, 8 F.3d 864, 869 (1st Cir. 1993) (7-day period is absolute limitation); United States v. Daddino, 5 F.3d
By letter dated January 30, 2009, the government advised the court that it had "determined that, while the application is likely procedurally barred, the government nonetheless does not oppose re-sentencing of the defendant on the basis of a criminal history category V." Despite the government's lack of opposition, I conclude that defendant's claim is raised too late in these proceedings for me to consider it. Because defendant did not raise the alleged criminal history calculation error before sentencing or within seven days thereafter, I am without jurisdiction over his claim. See U.S. v. Bernabal, 22 Fed.Appx. 37, 40 (2d Cir. 2001) (affirming Abreu-Cabrera and noting that "a court may not make sentence corrections outside of the seven-day period under [Rule 35(a)]").
For the reasons set forth above, defendant's motion for a reduction in his sentence is denied. The Clerk is directed to transmit a copy of the within to the parties.
Brooklyn, New York
Charles P. Sifton (electronically signed) United States District Judge