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United States v. Guerrero

April 23, 2009

UNITED STATES OF AMERICA
v.
ANGEL SIMON TURBIDES GUERRERO



The opinion of the court was delivered by: Wood, U.S.D.J.

Opinion and Order

By pro se motion dated January 18, 2009, Defendant Angel Simon Turbides Guerrero ("Turbides") moves for reconsideration of this Court's January 9, 2009 Order ("January 2009 Order") denying his November 7, 2008 motion ("November 2008 motion") for a sentence reduction. In the alternative, Turbides moves for "the filing of his notice of appeal" and for appointment of counsel.

For the reasons stated below, the Court (1) DENIES Turbides's motion for reconsideration; (2) construes Turbides's motion papers as a timely filed notice of appeal; and (3) DENIES Turbides's motion to appoint counsel.

I. Background

On November 11, 1991, Turbides pled guilty to several charges, including, inter alia, participation in a conspiracy to distribute narcotics. On October 29, 1997, Turbides was sentenced to a total of 352 months imprisonment.*fn1 At his sentencing, the Court found that Turbides was responsible for the possession and distribution of 6.665 kilograms of powder cocaine, and 6.665 kilograms of cocaine base ("crack cocaine").

In his November 2008 motion, Turbides moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the United States Sentencing Guidelines ("Guidelines"). Section 3582(c)(2) permits a court to reduce a term of imprisonment based on a sentencing range subsequently lowered by the Sentencing Commission. Amendment 706 to the Sentencing Guidelines, which became effective on November 1, 2007, and which was given retroactive effect on March 3, 2008, lowers the base offense level, and thus the applicable Guidelines sentencing range, for certain offenses involving crack cocaine.

In its January 2009 Order, the Court denied Turbides's motion for a sentence reduction. The Court found that because Amendment 706 does not lower the base offense level for offenses involving 4.5 kilograms or more of crack cocaine -- and Turbides's offense involved 6.665 kilograms of crack cocaine -- Turbides is ineligible for a sentence reduction.

Turbides now moves for reconsideration of the Court's January 2009 Order. In the alternative, Turbides moves "for the filing of his notice of appeal" and for the appointment of counsel to assist in his appeal.

II. Analysis

A. Motion for Reconsideration

For the reasons stated below, the Court denies Turbides's motion for reconsideration.

The standard for a motion for reconsideration is strict, and reconsideration "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

In his current motion, Turbides fails to point to law or facts that might reasonably cause the Court to change the decision set forth in its January 2009 Order. Turbides argues that, not withstanding the Court's finding that he is ineligible for a sentence reduction pursuant to § 3582(c)(2) and Amendment 706, the Court can and should resentence him, based on the Supreme Court's decisions in Kimbrough v. United States, 128 S.Ct. 558 (2007) and United States v. Booker, 543 U.S. 220 (2005).

Booker renders the Guidelines advisory, and requires courts to make an individualized determination of what sentence is appropriate in each case, taking into account all factors listed in 18 U.S.C. ยง 3553. Kimbrough permits a trial court to consider its disagreement with the disparate Guidelines sentences recommended for offenses involving crack ...


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