UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 8, 2009
UNITED STATES OF AMERICA,
DIOGENES ROSARIO, DEFENDANT.
The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
DECISION & ORDER
Defendant Diogenes Rosario was convicted after trial of conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base, in violation of 21 U.S.C. §§ 841, 846. Based upon the amount of cocaine and cocaine base that Defendant was responsible for,*fn1 his United States Sentencing Guidelines' ("USSG" or "Guidelines") total offense level was calculated at 38. The Court also concluded that Defendant was a career offender within the meaning of USSG § 4B1.1 and, therefore, his criminal history was assessed at a category VI. See USSG § 4B1.1(b). With a total offense level 38 and criminal history category VI, Defendant's Guidelines' range of incarceration was 360 months to life. On March 7, 2002, the Court sentenced Defendant principally to 360 months of incarceration. On appeal, the United States Court of Appeals for the Second Circuit affirmed Defendant's conviction and sentence, including the determination by this Court that Defendant was a career offender. See United State v. Garcia, 57 Fed. Appx. 486 (2d Cir. 2003).*fn2
Defendant now moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendments 706 and 709 to the Guidelines. In this regard, Defendant argues that, pursuant to Amendment 706, which lowered the Guidelines' base offense level by 2 levels for most crack cocaine offenses, he should be assessed a total offense level of 36. He further argues that, pursuant to Amendment 709, which amended the Guidelines' "related cases" doctrine for purposes of determining career offender status, see USSG § 4A1.2(a)(2);*fn3 compare fn. 2, supra, he should not be deemed a career offender and, instead, assessed a criminal history category III. At a criminal history category III and a total offense level 36, Defendant argues that he should be sentenced to 235 months, which is the low end of what he contends is the applicable Guidelines' range.
The Government opposes the motion, arguing that Amendment 709 is not retroactive and, without a change in Defendant's career offender assessment, he faces a Guidelines' sentence of 360 months to life even if Amendment 706 applies.
For the reasons that follow, the motion is denied.
The lynchpin of Defendant's motion is the application of the amended version of USSG § 4A1.2(a)(2). Under the amended version, Defendant would not be assessed as a career offender, would have a lower criminal history, and accordingly, would be in a lower Guidelines's range. Further, when combined with a two level reduction to his base offense level under Amendment 706, his sentencing range would be even lower. As the Government points out, however, the career offender Guidelines provide that because Defendant's offense of conviction carries a statutory maximum term of life incarceration, his base offense level must be at least a 37. See USSG § 4B1.1(b). Thus, if Amendment 706 applies (ostensibly reducing Defendant's total offense level to 36) but the Court's original career offender determination still applies, Defendant's total offense level must be at least a 37. At a criminal history category VI (assessed by virtue of the career offender determination, see USSG § 4B1.1(b)), the applicable Guidelines' range would still be 360 months to life.
The Court finds that Amendment 709 does not apply. As this Court has held, Amendment 709 is not to be given retroactive affect because it is not expressly listed in § 1B1.10(c) of the Guidelines. See Medina v. U.S., 2008 WL 5105282, at *5 (N.D.N.Y. Dec. 1, 2008).*fn4 Other courts have made similar findings, see United States v. Figueroa, 2008 WL 5069079, at * 1 (S.D.N.Y. Nov. 21, 2008)(collecting cases), and Defendant has not presented a compelling reason for this Court to deviate from this holding.
Further, without retroactive application of Amendment 709, there is no basis to apply the amended version of USSG § 4A1.2(a)(2). Assuming that Amendment 706 would apply, the applicable Sentencing Commission policy statement provides that "proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant." USSG § 1B1.10(a)(3). Thus, the sentencing modification allowed by Amendment 706 does not serve as a springboard to re-examine other sentencing factors that have not been made retroactive by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2);*fn5 see also United States v. Savoy, --- F.3d ----, 2009 WL 1457976, at *2 - *3 (2d Cir. May 27, 2009);*fn6 United States v. Williams, 551 F.3d 182, 186 (2d Cir. 2009).*fn7 The holding of United States v. Booker, 543 U.S. 220 (2005), does not change this analysis. Savoy, 2009 WL 1457976, at *2 - *3;*fn8 Figueroa, 2008 WL 5069079, at * 1.*fn9
Accordingly, there is no basis to reduce Defendant's sentence below the 360 months of incarceration originally imposed.
For the reasons discussed above, Defendant's motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) is DENIED.
IT IS SO ORDERED