The opinion of the court was delivered by: Denise Cote, District Judge:
Oscar Monzon seeks a reduced sentence on the ground that the sentencing court did not make sufficient factual findings to support the determination that he was responsible for the distribution of crack cocaine. For the following reasons, the application is denied.
Monzon was convicted following trial on November 3, 2000, of three counts of conspiring to distribute 50 grams or more of crack cocaine; conspiring to commit extortion; and extortion. Prior to trial the Government had filed a prior felony offender information.
Using the November 1, 2000 Guidelines Manual, the Presentence Report arrived at a base offense level of 38. It found that Monzon's criminal activity involved a conspiracy to distribute at least 9.62 kilograms of cocaine base and 15.6 kilograms of cocaine. As described in the report, the evidence at trial established that Monzon's co-conspirators sold crack under the brand name "Rambo" from Monzon's drug spot from October 1997 until January 26, 1999 at the rate of 62 grams of crack per week, for a total of 9.62 kilograms of crack over 156 weeks, and 100 grams of cocaine per week, for a total of 15.6 kilograms of cocaine. From February 1996 until January 1999, the co-conspirators paid rent of $1,500 to $2,000 per week to Monzon for use of the drug spot and his brand name for the crack.
At his sentencing on November 28, 2001, the Honorable Robert J. Ward addressed the objections made by Monzon to the report's calculation of the base offense level as 38. Monzon had argued in a letter of March 12, 2001, that he did not control the drug activity that took place in New York from 1996 to 1999, because he had moved to Florida in 1996. The Government argued that the defendant personally sold over 1.6 kilograms of crack cocaine before moving to Florida and that he remained responsible for the sale of crack and powder cocaine from his drug spot after he moved south.
Judge Ward found that the evidence at trial established that Monzon was responsible for the drug trafficking from the drug spot even after he moved to Florida. The judge noted that Monzon profited from the sales of crack cocaine and that those sales were reasonably foreseeable to him. Two co-conspirators paid him rent for the right to sell crack at the drug spot and for the use of Monzon's brand name "Rambo" for the drug. Thus, Judge Ward found that the Probation Department's calculation of the base offense level of 38 was "correct."
Monzon's offense level was 44 and his criminal history category was IV, leading to a Guidelines range of life imprisonment. Judge Ward imposed a sentence of life imprisonment.
Represented by new counsel on appeal, Monzon challenged his conviction on a number of grounds, including a claim that his trial attorney provided ineffective assistance of counsel at sentence. In a summary order, the Court of Appeals affirmed the conviction on June 25, 2003. In rejecting a challenge to the sufficiency of the evidence, the appellate court described the trial testimony of Monzon's co-conspirators, specifically their evidence that Monzon gave them a weekly supply of 100 grams of powder cocaine and 62 grams of crack stamped with Monzon's brand name "Rambo" during the period 1995 to 1996. And, even after Monzon moved to Florida in 1996, Monzon "continued to profit from the sale of crack and cocaine" which those co-conspirators sold since Monzon demanded that they pay him rent at the rate of $2,000 per week "for the privilege of operating that [drug] spot." The Court of Appeals also rejected challenges to the verdict form that inquired whether the drug conspiracy involved 50 grams or more of crack.
Monzon filed a petition for a writ of habeas corpus, which was denied on March 14, 2007. The denial was affirmed on appeal on September 24, 2008.
Effective November 1, 2007, the United States Sentencing Commission amended the Guidelines to lower the Guideline sentencing range for certain categories of offenses involving crack. On December 1, 2007, the Sentencing Commission authorized the retroactive application of the amendment.
Monzon brought a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) on January 27, 2009. Monzon sought resentencing to the 20-year mandatory minimum sentence to which he is subject. Monzon principally relied on the amendment to the crack guidelines, and his argument that a hearing was necessary to establish the amount of crack properly attributed to him beyond the 50 grams found by the jury in its special verdict. The Government responded on May 21, 2010 that Monzon was not eligible for a sentence reduction pursuant to the amendments to the crack guidelines. It explained that since the crack amount was greater than 4.5 kilograms, Monzon's base offense level was still 38, and there was no adjustment to his sentence based on the amendments to the crack guidelines.
On June 15, 2010, the Court appointed counsel to represent Monzon and file a response by July 30. After obtaining a number of adjournments, on October 28 appointed counsel asked to be relieved. On November 3, the Court appointed replacement counsel for Monzon. Through a letter of February 28, 2011, replacement counsel advised the Court that his research led him to agree with the Government that Monzon did not qualify for any of the relief he sought in his motion. The letter requested an extension of time so that Monzon could study the research collected by his counsel. Finally, counsel conveyed Monzon's request that the attorney be appointed to represent Monzon on other issues not raised by the January 27, 2009 motion.
On March 2, 2011, the Court responded to the February 28 letter as follows: "Counsel was appointed to represent the defendant in connection with the defendant's 1/27/09 motion. The defendant's submission was originally due July 20, 2010. The request for an extension is granted to April 1, 2011. There shall be no further extension. The issues to be addressed are solely those presented by the 1/27/09 motion. The ...