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United States of America v. Rafael Lopez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


July 20, 2011

UNITED STATES OF AMERICA
v.
RAFAEL LOPEZ, DEFENDANT.

The opinion of the court was delivered by: John F. Keenan, United States District Judge:

Memorandum Opinion and Order

On April 1, 2010, Defendant Rafael Lopez ("Lopez" or "Defendant") pleaded guilty to a single count Indictment charging illegal re-entry into the United States following his deportation due to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing on June 14, 2010, the Court adopted the United States Sentencing Guidelines ("U.S.S.G.") calculations in the Pre Sentence Report, finding the applicable total offense level to be 17 (pursuant to U.S.S.G. §§ 2L1.2, 3E1.1) and the criminal history category to be III (pursuant to U.S.S.G. §§ 4A1.1(a), (d), (e), 4A1.2(c), (e)). Lopez was sentenced to 30 months' imprisonment, the lowest end of the Guidelines range. In a summary order issued as mandate on July 8, 2011, the Court of Appeals affirmed Lopez' sentence. See United States v. Lopez, No. 10-2477-cr, 2011 WL 2356477 (2d Cir. June 15, 2011).

On January 21, 2011, while his direct appeal was pending, Lopez moved, pro se, for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of the November 1, 2010 amendments to the Guidelines. Lopez does not indicate any particular amendment that may be applicable. However, he does request that the Court consider his age, mental and emotional conditions, physical conditions, and military service under U.S.S.G. § 5H - most likely a reference to Amendment 739, which revises the policy statements in § 5H. Lopez also requests that he be considered for "the specific departures and variance." Construing this pro se motion to raise the strongest grounds possible, the Court interprets this application as a reference to Amendment 740, which concerns downward departures in illegal re-entry cases based on the defendant's cultural assimilation, and Amendment 742, which eliminates recency points from criminal history category calculations. See U.S.S.G. Supp. to Appendix C (2010).

Section 3582(c)(2) provides that in 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 . . . 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. "The statute thus establishes a two-step inquiry. A court must first determine that a reduction is consistent with § 1B1.10 [the applicable policy statement] before it may consider whether

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