The opinion of the court was delivered by: Sifton, Senior Judge.
Shariek Windley moves, pursuant to 18 U.S.C. § 3582(c)(2), for a reduction of his sentence. For the reasons stated below, the motion is denied.
On August 8, 2004, petitioner, along with 19 co-defendants, was charged in an indictment with conspiring to possess and distribute 50 grams or more of cocaine base in violation of 21 U.S.C. 841. Co-defendants of petitioner were charged in the same indictment with murder and discharge of a firearm in furtherance of the drug conspiracy. A superceding indictment subsequently charged petitioner with an additional count of distributing five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). On October 25, 2004, shortly before petitioner, along with several co-defendants, was scheduled to be tried on these counts, petitioner pled guilty to the conspiracy count before Magistrate Judge Gold. I accepted the plea on November 16, 2004.
On March 29, 2005, following a series of letters to the court regarding his plea, petitioner made a motion to withdraw his guilty plea, on the ground that his attorney had told him that he could not win at trial and that he would receive 20 years or more if he went to trial, told him the incorrect offense and criminal history levels, and failed to tell him anything about the evidence possessed by the government. On April 14, 2005, I denied the motion to withdraw the plea, on the ground that petitioner had not made the showing required by Rule 11(d)(2)(B), because his counsel was not ineffective, because there was no evidence that his plea was involuntary, and his claim of innocence was unpersuasive.
On May 4, 2005, I sentenced petitioner to the mandatory minimum of 120 months of incarceration. At the sentencing hearing, the probation department calculated petitioner's offense level at 30, which, at petitioner's criminal history category, exposed him to a Guidelines range of 135 to 168 months. I noted the substantial degree of injustice wrought by the disparity in sentencing between crack and cocaine, and determined that the offense level should be reduced to 29, resulting in a guidelines range of 121 to 151. I determined that the one month difference between the mandatory minimum and the lower end of the guidelines range was insignificant, resulting in my 120 month sentence. The government did not appeal.
On February 25, 2008, petitioner made the current motion for reduction of sentence pursuant to 18 U.S.C. § 3582. In his motion, Petitioner contends that he is entitled to a reduction of sentence, on the ground that, although he pled guilty to conspiracy to possession with intent distribute 50 grams of crack cocaine, the evidence at the trial of his co-defendants showed only 27 grams of crack cocaine were involved in the case. Petitioner argues that, had he pled guilty to a crime reflecting the amount of crack proved at his co-defendants' trial, he would have been subject to a five-year mandatory minimum term, rather than the ten-year term to which he was sentenced. In a letter submitted subsequent to his original motion, petitioner states that his lawyer failed him in that he did not try to get him a "safety valve" reduction in sentence.*fn1 Petitioner states that if he had known at the time he pled guilty what he now knows about the law, he would have done things differently.
On November 5, 2008, I issued an order to Show Cause as to why the relief should not be granted.*fn2
"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.*fn3 Petitioner in this case was sentenced to the mandatory minimum set forth in 21 U.S.C. § 841(b)(1), which was below the guidelines range at the time of his sentencing and currently. Therefore, he is not entitled to a reduction pursuant to § 3582.
In fact, petitioner does not appear to seek an adjustment based on the retroactive amendments to the Sentencing Guidelines.
Instead, he argues that because the government only possessed evidence of 27 grams of crack cocaine, his mandatory minimum sentence should have been five years. He further argues that if he had known at the time of pleading what he now knows, he would not have acted as he did. Petitioner has previously filed a motion to withdraw the plea based on these same arguments, which I rejected in my Memorandum and Opinion on April 14, 2005. There is no authority under § 3582 to reduce petitioner's sentence based on these claims.
For the reasons stated herein, petitioner's motion for a reduction of sentence is denied. The Clerk is directed to transmit a copy of the within to ...