The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On February 22, 1990, following a trial held before the Honorable Reena Raggi, then a United States District Judge of this court, a jury convicted defendant on all counts of a five-count superseding indictment. (Judgment, Docket No. 62, Ex. B, at 1.) Count One charged defendant with possession with intent to distribute in excess of fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). (Id.) Count Two charged defendant with unlawful possession and use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). (Id.) Counts Three, Four, and Five charged defendant with separate offenses of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(2). (Id.)
On July 16, 1992, Judge Raggi sentenced defendant to 210 months of imprisonment on Count One, 60 months of imprisonment on Count Two, to run consecutively to the sentence imposed on Count One, and prison terms of 120 months on each one of Counts Three, Four, and Five, to run concurrently with each other and the sentence imposed on Count One. (Sentencing Tr., Docket No. 62, Ex. C, at 20-21.) Judge Raggi also imposed a supervised release term of ten years on Count One and three years on each of the remaining counts to run concurrently with each other and the term imposed on Count One. (Id at 21.)
Defendant now moves for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) as a result of the amendments to the crack cocaine (or cocaine base) United States Sentencing Guidelines ("Sentencing Guidelines") promulgated by the United States Sentencing Commission and made effective by Congress on November 1, 2007, and which were applied retroactively, effective on March 3, 2008. U.S.S.G. §§ 1B10.10, 2D1.1. The government opposes defendant's request. For the reasons set forth below, defendant's motion is denied.
On February 22, 1990, defendant was convicted following a jury trial of one count of possession with intent to distribute in excess of fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), one count of unlawful possession and use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), and three counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(2). Following defendant's conviction, the United States Probation Department ("Probation Department") filed a PreSentence Report ("PSR") with the court. (PSR, Docket No. 62, Ex. A.) At the time of defendant's July 16, 1992 sentencing, the Sentencing Guidelines base offense level ("BOL") for the crack cocaine-related offense charged in Count One was thirty-two.*fn1 (Id. at 4.) The combined BOL for the firearm possession offenses charged in Counts Three, Four, and Five was also thirty-two. (Id. at 5.) Defendant's total adjusted offense level ("TOL") for Counts One, Three, Four, and Five was thirty-two. (Id. at 6.) Defendant's criminal history computation resulted in a criminal history score of nineteen. (Id. at 11.) Two points were added to defendant's criminal history score because he committed the offenses less than two years after his release from custody on a prior conviction. (Id.) Defendant's total criminal history score of twenty-one resulted in a criminal history category of VI. (Id. at 4-5.) Based on the TOL for Counts One, Three, Four, and Five of thirty-two and a criminal history category of VI, the Sentencing Guidelines range for those crimes was 210 to 262 months. (Id. at 12.) Pursuant to the statute, Count Two carried a mandatory consecutive sentence of sixty months.(Id. at 5.) The Probation Department suggested that, due to the high number of prior arrests for narcotics sale and possession, which were not reflected in defendant's criminal history category due to the operation of criminal history calculation guidelines, the court could consider an upward departure from the Sentencing Guidelines range. (Id. at 16.)
Defendant was sentenced to 210 months of imprisonment on Count One, 60 months of imprisonment on Count Two, to run consecutively to the sentence imposed on Count One, and sentences of 120 months of imprisonment on Counts Three, Four, and Five, to run concurrently with each other and with the sentence imposed on Count One, making defendant's total sentence 270 months. Notably, due to an administrative error by the government, defendant was not charged during sentencing with possession with intent to distribute narcotics by a convicted felon in violation of 21 U.S.C. § 851(c). As a result, defendant was not sentenced to a twenty-year statutory minimum term of incarceration on the narcotics charge in accordance with 21 U.S.C. § 851(a)(1). (Sentencing Tr., Docket No. 62, Ex. C, at 2, 16; PSR, Docket No. 62, Ex. A, at 12.)
According to the Bureau of Prisons, after accounting for "good time" earned by defendant to date, and projected credit for future good time earned, defendant's term of imprisonment will expire on July 25, 2010. (Gov't Resp. to Order to Show Cause, at 10.) In an addendum to the PSR dated March 26, 2008, the Probation Department projected that defendant's release date is June 14, 2010. (Addendum to PSR, Docket No. 62, Ex. C, at 1.)
During his almost nineteen years of imprisonment for these offenses, defendant has been charged with fourteen disciplinary infractions for his involvement in ten incidents. On four occasions, defendant was disciplined for refusing to obey an order. (Id. at 3-4.) Defendant was also disciplined for insolence toward prison staff on four occasions. (Id.) Twice defendant was disciplined for committing an assault without serious injury. (Id.) Defendant was also disciplined for disruptive behavior on one occasion and for engaging in a group demonstration on two occasions. (Id.) Finally, defendant was disciplined for being in an unauthorized area on one occasion. (Id.)
While incarcerated, defendant completed the following Adult Continuing Education courses: Black History, Fitness 1, Investing, Health Fair, and Fitness Program and General Nutrition. (Id. at 3.) Defendant also completed a counseling program entitled, Cage Your Rage. (Id.) Defendant did not complete the General Education Development ("GED") program.*fn2
Defendant apparently has not participated in any form of vocational training.
Prior to the crimes charged in this case, defendant had numerous contacts with the criminal justice system. (PSR, Docket No. 62, Ex. A, at 6-11.) Between the age of seventeen and twenty-five, defendant was charged with forty-one offenses. (Id.) Thirty-four of these offenses involved possession or sale of controlled substances, including crack cocaine and marijuana. (Id.) The other offenses committed by defendant during this period include, criminal trespass, two instances of disorderly conduct, two instances of assault, use of a stolen vehicle, and grand larceny. (Id.) Notably, the original charges for defendant's disorderly conduct convictions at age seventeen and eighteen were criminal sale of a controlled substance, and in one instance, defendant was also charged with resisting arrest. (Id.) At the time of defendant's arrest in this case, two other charges were pending against him: 1) criminal sale of a controlled substance in the third degree based on his arrest on February 21, 1990, for selling fifty-three vials of crack cocaine to an undercover New York City police officer in Queens County, New York; and 2) criminal sale of a controlled substance in the third degree based on his arrest two weeks later, on March 7, 1990, in Queens County, New York, after police officers observed him line several people against a fence to sell them vials of cocaine. (Id. at 11-12.) Defendant has never maintained legitimate employment.*fn3
The charges in this case stem from defendant's arrest on August 24, 1990. (PSR, Docket No. 62, Ex. A, at 2.) On that date, Drug Enforcement Administration ("DEA") agents observed defendant making phone calls from a public telephone booth. (Id.) Defendant carried a black knapsack and had a bulge in the waistband of his pants. (Id.) After defendant entered a nearby car and drove away, the agents pulled him over. (Id.) The bulge in his waistband turned out to be a concealed 9mm semi-automatic pistol, and defendant was arrested. (Id.) Defendant's knapsack contained $5,000, as well as two slips of paper, resembling drug accounting records. (Id.) Upon arrest, defendant repeatedly yelled "Freddy," a code word intended to alert persons nearby to the presence of law enforcement officers. (Id. at 4.) A subsequent search of defendant's apartment*fn4 yielded approximately 800 vials containing a total of 75.280 grams of 96% pure cocaine base, an assortment of drug paraphernalia including sodium bicarbonate and drug records, an Uzi Mini Carbine gun, a .380 caliber Grendel semi-automatic pistol, and ammunition. (Id. at 3.) On two occasions shortly after his arrest, defendant expressed regret for not killing the arresting DEA agents with his 9mm semi-automatic pistol when he had the opportunity to do so. (Id.) Defendant is alleged to have made offensive moves and gestures towards agents during post-arrest ...