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United States v. Contrera


July 30, 2009


The opinion of the court was delivered by: Charles P. Sifton United States District Judge


SIFTON, Senior Judge.

Defendant Leo Contrera, currently incarcerated at the Federal Correctional Institution in Ray Brook, New York, was convicted on December 11, 1995, of arson, in violation of 18 U.S.C. § 844(i) (Count Seven), murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Count Eight), using and carrying a firearm during and in relation to a violent crime, in violation of 18 U.S.C. § 924(c) (Count Ten), and engaging in a narcotics distribution conspiracy, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(i) & (iii) (Count 47). He was subsequently sentenced to two concurrent terms of life imprisonment and a consecutive five-year term. Presently before this Court is defendant's motion, pursuant to 18 U.S.C. § 3582(c)(2), to modify his sentence. For the reasons stated below, defendant's motion is denied.


The following undisputed facts are drawn from the record of prior proceedings in this matter. Defendant, together with William and David Mora, Jose Vega, and Love Brooks, was convicted after a fourteen-week trial in the fall of 1995 of participating in the Mora brothers' crack distribution gang (the "Mora gang" or the "gang") in Brooklyn, New York. The trial detailed ten years of crack dealing by the Mora gang and the violence used by the gang in its attempt to maintain its territory.

In the late 1980's into the early 1990's, defendant ran an independent crack distribution ring. In 1992, defendant was engaged in selling crack at the corner of Linwood Street and Arlington Avenue (the "Linwood spot") in Brooklyn, New York. Revenues from the Linwood spot were declining, bringing in approximately $500 to $1,000 a day. Defendant generally employed only one worker to sell crack at that location.

Due to his decreased revenues, defendant teamed up with the Mora gang for several months in 1992 to distribute heroin at the Linwood spot. David Mora supplied the heroin to defendant, through a middle man, and defendant had his dealer sell the heroin to customers at the Linwood spot. Defendant returned a percentage of his profits to Mora.

Toward the end of 1992, workers complained to William Mora that the Mora gang was losing business from its sales spot located at the corner of Ashford and Fulton Streets to a group of Dominican drug dealers that started selling crack several blocks away at the corner of Linwood and Fulton Street (the "Fulton spot"). Defendant also voiced concerns to the Mora brothers that he was losing business from the Linwood spot due to the Dominican crew's operation. To drive away competition posed by the Fulton spot, William Mora and defendant agreed that the bodega located at 3002 Fulton Street, Brooklyn, New York, at the corner of Linwood and Fulton Street, should be burned down because they believed it was the rival Dominican drug gang's headquarters.

On January 23, 1993, while accomplice Daniel Guerrero stood by a telephone at the Linwood spot, Guerrero was confronted by a Dominican drug dealer from the nearby Fulton spot. The Dominican drug dealer placed a shotgun against Guerrero's stomach and demanded to know who sold drugs at the Linwood spot. The following day, January 24, 1993, Guerrero told defendant what happened. Several hours later, defendant gave Guerrero $300 and told him to wait in the area because they were going to burn something.

Later that evening, defendant arrived at the Linwood spot with a boy known as "Billy" who was carrying a container filled with gasoline. Defendant and Billy met with Guerrero and the three walked towards the bodega located at Linwood and Fulton. On the way to the store, defendant pulled out a handgun and cocked it. The men were joined by a fourth man as they approached the bodega.

Defendant, along with the fourth man who was now carrying the container of gasoline, entered the bodega while Guerrero stood at the store entrance and Billy waited outside. The fourth man splashed gasoline up and down the the store's aisles, on the store's shelves and on Jose DeJesus Salecedo, a elderly store patron, who was sitting in the front of the bodega. In the meantime, defendant, holding a gun to the head of one of store's employees, ordered the employee to the back of the store. Guerrero then lit a book of matches and threw it in the puddle of gasoline on the floor. As a result, the bodega went up in flames and Salecedo died in the blaze. In addition, the entire building was gutted, the owner of the store received burns, and seventeen members of a local softball team playing dominoes in the back room of the bodega only managed to escape by breaking down a rear door of the building, several of whom were hospitalized due to smoke inhalation. The four men fled the scene and as Guerrero left the other three men to head home, he overheard defendant tell Billy that they needed to go see William Mora. The following morning, defendant visited Guerrero's home and dropped off $1500 as payment for Guerrero's participation in the arson.

Defendant subsequently entered David Mora's store where William Mora and a crowd of other people were present and excitedly told them that he blew up the bodega earlier that night. William Mora told defendant to "shut up," and after conferring with defendant privately, herded him away from the other people and into a car outside. A week after the arson, defendant admitted to Felix Ramos, one of his closest friends, that he had burned the store with Guerrero.

Following a fourteen-week trial before this Court, a jury convicted defendant of four counts. The pre-sentence report arrived at a total offense level of 50 and a criminal history category of five, for which the guideline sentence under the United States Sentencing Guidelines (the "Guidelines") was a term of life imprisonment. With regard to Count 47, the crack conspiracy charge, the pre-sentence report applied U.S.S.G. § 2D1.1(b)(1) to add two levels to defendant's base offense level in light of defendant's possession of firearms at the "drug spot." At sentencing, defendant challenged, inter alia, the base offense level of the narcotics conspiracy, attacking the amounts attributed to him, and the use of the first-degree murder Guideline for the Salcedo arson murder. The Court determined the amount of narcotics involved, 1.5 kilos of crack, and found that the first-degree murder guideline was applicable. Defendant was sentenced to concurrent terms of life imprisonment on Counts Eight and 47, a concurrent term of twenty years on Count Seven, and a consecutive five-year term on Count Ten. Defendant's challenge to his sentence was rejected by summary order on June 8, 1998. See U.S. v. Mora, 152 F.3d 921, 1998 WL 398802 (2d Cir. 1998) (table) (summary order).

On September 23, 1999, defendant moved to vacate his sentence pursuant to 28 U.S.C. § 2255. I denied defendant's motion on September 27, 2001. On July 15, 2002, defendant's appeal of my denial of a certificate of appealability was also denied.

On November 1, 2000, Amendment 599 to U.S.S.G. § 2K2.4, which governs cases in which the defendant was convicted for using a firearm, armor-piercing ammunition, or an explosive during or in relation to certain crimes, in violation of 18 U.S.C. §§ 844(h), 924(c), or 929(a), took effect. Amendment 599 revised the "Application Notes" commentary to § 2K2.4 and clarified that if a defendant has been convicted of one of these separate weapons offenses and also of the underlying crime, the court may not apply a weapon enhancement to the underlying crime, lest "unwarranted disparity and duplicative punishment" result. See U.S.S.G. app. C, amend. 599, reason for amendment. It applies retroactively.*fn1

On November 1, 2007, Amendment 706, as further amended by Amendment 711, to U.S.S.G. § 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy, took effect. Amendment 706 generally reduces by two levels the base offense levels applicable to crack (or "cocaine base") offenses. On December 11, 2007, the United States Sentencing Commission (the "Sentencing Commission") voted to apply the amendment retroactively to crack offenses, effective March 3, 2008. The Sentencing Commission also promulgated amendments to the policy statement codified at U.S.S.G. § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guidelines Range, which implemented the retroactive application of Amendment 706, as amended by Amendment 711, effective March 3, 2008.

By motion filed pro se on February 17, 2009, defendant moved for the modification of his sentence based on the above amendments.


"A district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. U.S., 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.*fn2

A district court may, however, reduce a term of imprisonment only if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); see also 28 U.S.C. § 994(u). Because the Sentencing Commission voted to apply Amendments 599 and 706 retroactively, I may consider whether defendant's sentence should be reduced.

I. Amendment 599

Defendant argues that I should modify his sentence based on Amendment 599 in light of my adoption of the pre-sentence report's calculation of the offense level for count 47, the crack conspiracy charge. According to defendant, the count 47 offense level calculation included an allegedly improper two-point enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), due to defendant's possession of firearms at the "drug spot." As previously noted, Amendment 599 clarifies that if a defendant has been convicted of a weapons offense pursuant to 18 U.S.C. § 924(c), and also of the underlying crime upon which the § 924(c) charge is based, the court may not apply a weapon enhancement to the underlying crime. In this case, however, while defendant was convicted of a § 924(c) crime, no enhancement was applied to the underlying crime, which was murder in aid of racketeering. Nothing in Amendment 599 precludes the application of a weapon enhancement to the offense level of a separate crime that is not the basis of a § 844(h), 924(c), or 929(a) weapons offense -- in this case, the drug conspiracy count. Accordingly, Amendment 599 does not entitle defendant to a modification of his sentence.

II. Amendment 706

Defendant further argues that I should modify his sentence based on Amendment 706, which generally lowers the base offense levels for certain crimes involving crack cocaine by two points. The Second Circuit recently confirmed that "the district courts now have jurisdiction pursuant to 18 U.S.C. § 3582(c)(2) to decide in the first instance whether to modify previously imposed sentences where the cocaine ranges on which they were based have subsequently been lowered." U.S. v. Regalado, 518 F.3d 143, 150-51 (2d Cir. 2008). However, 18 U.S.C. § 3582(c)'s requirements are jurisdictional and limit this Court's power to modify sentences. See U.S. v. Smith, 438 F.3d 796, 799 (7th Cir. 2006) (§ 3582(c) limits the substantive authority of the district court and is accordingly a real "jurisdictional" rule); see also U.S. v. Thomas, 135 F.3d 873, 876 (2d Cir. 1998) ("Congress has imposed stringent limitations on the authority of courts to modify sentences, and courts must abide by those strict confines"); U.S. v. Silva, 337 F. Supp.2d 573, 575-76 (S.D.N.Y. 2004) (describing § 3582(c) as jurisdictional and declining to reduce defendants' sentences due to lack of jurisdiction); U.S. v. Gagot, 534 F.Supp.2d 212, 213 n.3 (D. Mass. 2008) (discussing 18 U.S.C. § 3582(c)(2) and noting Congress can circumscribe district court's jurisdiction "as it sees fit").

Section 3582(c)(2) directs that any reduction in a defendant's sentence must be consistent with applicable policy statements issued by the Sentencing Commission, as "Congress has granted the [Sentencing] Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect." Braxton v. U.S., 500 U.S. 344, 348 (1991) (citing 28 U.S.C. § 994(u)). Since § 3582(c)(2)'s requirement that a district court consider whether its reduction is consistent with the Sentencing Commission's policy statements is a limitation on a district court's jurisdiction, the Supreme Court's recent Sixth Amendment sentencing jurisprudence, including United States v. Booker, 543 U.S. 220 (2005), is not applicable and the district court remains limited by policy statements in a § 3582(c)(2) proceeding. See U.S. v. Diggins, No. 03-CR-801, 2008 WL 4054413, at *2 (S.D.N.Y. Aug. 27, 2008) (holding that as a "significant majority" of courts have concluded, "Booker and Kimbrough do not render the Sentencing Commission's policy statement advisory under § 3582(c)(2)"); U.S. v. Wise, 515 F.3d 207, 221 n.11 (3d Cir. 2008) ("Nothing in [Booker] purported to obviate the congressional directive on whether a sentence could be reduced based on subsequent changes in the Guidelines"); see also Gagot, 534 F.Supp.2d, at 213 n. 3;*fn3 U.S. v. Jones, No. 08-1223-CR, 2008 WL 4726292, at *1 (2d Cir. Oct. 29, 2008) (summary order) (noting that district court's discretion under § 3582(c)(2) is "not unlimited" and "must be exercised in light of U.S.S.G. § 1B1.10 which implements the authority provided by § 3582 to reduce a sentence"). But see U.S. v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (Booker applies when a district court modifies a defendant's sentence pursuant to § 3582(c)(2)).

Here, the application of the policy statement codified at U.S.S.G. § 1B1.10(a)(2)(B) renders defendant ineligible for a modification of his sentence pursuant to Amendment 706. Section 1B1.10(a)(2)(B) provides as follows:

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) an amendment listed in subsection (c) [including Amendment 706] does not have the effect of lowering the defendant's applicable guideline range.

U.S.S.G. § 1B1.10(a)(2)(B). In this case, because defendant received a multiple count adjustment, a reduction in the base offense level for Count 47, the crack conspiracy charge, would not alter defendant's total offense level. Specifically, because defendant's combined adjusted offense level for Counts Seven and Eight was 48, and his adjusted offense level for Count 47 was 44, the greater of the adjusted offense levels (48) was applied in calculating defendant's total offense level after the multiple count adjustment. Therefore, a reduction in the offense level for Count 47 would have no effect on defendant's total offense level, and the application of Amendment 706 would not have the effect of lowering defendant's applicable guideline range. Accordingly, pursuant to U.S.S.G. § 1B1.10(a)(2)(B), this Court lacks jurisdiction to modify defendant's sentence based on Amendment 706.


For the reasons stated above, defendant's motion is denied. The Clerk is directed to transmit a copy of the within to the parties and the magistrate judge.


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