UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 29, 2009
UNITED STATES OF AMERICA,
ABRAM LLANOS, DEFENDANT.
The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
DECISION & ORDER
Defendant Abram Llanos was convicted upon his guilty plea of conspiring to possess with the intent to distribute and to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. 846 and 841(b)(1)(B)(Count 1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1)(Count 6). At sentencing, the Court determined Defendant's total offense level to be a 25 and his criminal history to be a category IV, resulting in a United State Sentencing Guidelines ("Guidelines") range of 84 to 105 months.*fn1 However, Llanos's Count 1 offense carried a 120-month mandatory minimum sentence. After granting the Government's motion for a departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the Court sentenced Llanos to 92 months of incarceration on both counts, with the terms of imprisonment to run concurrently.
Defendant now seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, in light of Amendment 706 to the Guidelines reducing the base offense level listed on the drug quantity table for most cocaine base (crack cocaine) offenses. See U.S.S.G. § 2D1.1(c); Def. Motion (dkt. # 59). The Government has opposed the motion. Govt. Opp. (dkt. # 60). For the reasons set forth below, the motion is denied.
The applicable statute providing authority for the Court to re-sentence a defendant in these circumstances is 18 U.S.C. § 3582(c)(2). This provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The applicable policy statement issued by the Sentencing Commission is U.S.S.G. §1B1.10 ("Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)"). This provides in pertinent part:
(a) Authority. -* * *
(2) Exclusions. - A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-
(B) [the crack cocaine sentence reduction amendment] does not have the effect of lowering the defendant's applicable guideline range.
U.S.S.G. § 1B1.10(a)(2).
Where a particular case involves a statutory mandatory minimum sentence that exceeds the applicable Guidelines range, the Court must set the Guidelines sentence at the statutorily required minimum. U.S.S.G. § 5G1.1(b); see United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009); United States v. Johnson, 517 F.3d 1020, 1024 (8 th Cir. 2008). Thus, when a defendant has a Guidelines range below the mandatory minimum before applying U.S.S.G. § 5G1.1(b), the Guidelines sentence becomes the statutory mandatory minimum. See U.S.S.G. § 5G1.1(b)("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."); see also Williams, 551 F.3d at 185; Johnson, 517 F.3d at 1024. "Once the mandatory minimum applied, [Defendant's] sentence was no longer 'based on a sentencing range that has subsequently been lowered by the Sentencing Commission.'" Williams, 551 F.3d at 185 (quoting 18 U.S.C. § 3582(c)(2)); see Johnson, 517 F.3d at 1024 (If the crack sentencing amendment would not change the Guidelines sentence, then "[the crack cocaine sentencing reduction amendment] does not have the effect of lowering the defendant's applicable guideline range."). Of course, the ultimate sentence in this case was not the statutory mandatory minimum but instead a lower sentence based on the Government's motion under 18 U.S.C. § 3553(e). In this regard, the ultimate sentence was based upon considerations of Defendant's cooperation with the Government. Williams, 551 F.3d at 186.*fn2
Inasmuch as the Court determined that the full extent of the departure based on Defendant's substantial assistance warranted a sentence of 92 months, there was no basis to consider the crack cocaine Guidelines in passing sentence. See id. at 186-87.*fn3 Therefore, the crack cocaine sentence reduction amendment does not apply. Id.
Finally, assuming arguendo that the Amendment applies to Llanos's situation, the Court declines to allow a two level downward departure in light of the departure already granted below the statutory minimum and upon consideration of the factors set forth at § 3553(a). See United States v. Borden, --- F.3d ----, 2009 WL 1066910, at *3 (2d Cir. April 22, 2009)("Because the statute states that a district court may reduce the term of imprisonment, it clearly allows for a district court to exercise its discretion when considering a motion to reduce a sentence brought pursuant to § 3582(c)(2).").
For the reasons set forth above, Defendant's motion to reduce his sentence [dkt. # 59] is DENIED.
IT IS SO ORDERED