The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
On November 17, 2006, defendant Benjamin Figueroa ("Defendant") pled guilty to conspiracy to distribute and possess with the intent to distribute crack cocaine as a lesser-included offense under the one count of the indictment. On February 20, 2008, Defendant was sentenced to 150 months' imprisonment. On March 25, 2009, Defendant's conviction was summarily affirmed by the Second Circuit Court of Appeals. See United States v. Soto, et al., 2009 WL 765015 (2d Cir. 2009). On December 22, 2011, Defendant filed the instant motion requesting a sentence reduction. For the reasons set forth below, the motion is denied.
On November 17, 2006, pursuant to a plea agreement, Defendant pled guilty to the lesser-included offense under the one count of the indictment, conspiracy to distribute and possess with the intent to distribute 5 grams or more of cocaine base ("crack cocaine") in violation of 21 U.S.C. § 841(b)(1)(B). (Fenstermaker Decl. Ex. B ("Plea Agreement"), ¶ 1.) The parties agreed, as part of the plea agreement, that Defendant only would be responsible for the amount of drugs purchased by undercover agents and cooperators from Defendant and his co-defendants. (Id. Ex. A ("Sentencing Tr."), 8-9.) The Government proffered that undercover agents and cooperators purchased 141 grams of crack cocaine from Defendant and his co-defendants. (Id.) The plea agreement contained an estimated base offense level of 32, pursuant to United States Sentencing Guidelines ("U.S.S.G.") §§ 2D1.1(a)(5) and 2D1.1(c)(4), which corresponded to offenses involving 50 to 150 grams of crack cocaine. (Plea Agreement ¶ 2.)*fn1
On February 20, 2008, Defendant was sentenced to 150 months' imprisonment. (See Feb. 20, 2008 Minute Entry, Dkt. Entry 169.) After taking into account: 1) Defendant's timely acceptance of responsibility; 2) eligibility for two global plea point reduction because defendant and all of his co-defendants timely pled guilty; 3) Defendant's managerial role in the narcotics trafficking activities of the "Bushwick Tribe" of the Latin Kings gang; and 4) Defendant's possession of a firearm during the commission of a narcotics trafficking offense, the court determined that Defendant's total offense level was 30. (Sentencing Tr. 16-20.) With Defendant's level III criminal history category, the applicable U.S.S.G. range was 121 to 151 months' imprisonment. (Id. at 20.)
On direct appeal by Defendant, the Second Circuit Court of Appeals summarily affirmed his sentence on March 25, 2009. See United States v. Soto, et al., 2009 WL 765015 (2d Cir. 2009).
On December 22, 2011, Defendant filed the instant motion requesting a sentence reduction pursuant to 18 U.S.C. § 3582 and U.S.S.G. § 1B1.10.
On August 3, 2010, the Fair Sentencing Act of 2010 ("FSA"), Pub. L.
No. 111-222, 124 Stat. 2372 (2010), went into effect increasing the
amount of crack cocaine required to trigger mandator
the United States Sentencing Commission to
y minimum sentences and directing
implement comparable changes in the U.S.S.G. See also U.S.S.G. App. C
Amendment 750 (Nov. 1, 2011). As relevant here, the U.S.S.G. now
provides for a base offense level of 26 where a defendant is
responsible for between 28 and 112 grams of crack cocaine and a base
offense level of 28 where a defendant is responsible for between 112
and 196 grams of crack cocaine. See U.S.S.G. §§ 2D1.1(c)(6) and (7).
As the parties agree, the amended crack cocaine guidelines are
"covered amendments" under U.S.S.G. § 1B1.10(c) that can be applied
retroactively and used to reduce a defendant's sentence. *fn2
See U.S.S.G. § 1B1.10(c) (listing Amendment 750 as a covered
Pursuant to 18 U.S.C. § 3582(c)(2), a court may modify a term of imprisonment: 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 . . . 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.
Accordingly, "[a] court must first determine that a reduction is consistent with [U.S.S.G.] § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). U.S.S.G. § 1B1.10(a)(1) directs that "any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement." U.S.S.G. § 1B1.10, application note 1, subsection (B)(ii)-(iii) provides that, in considering any sentence reduction, the court "shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment" and "may consider post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment."
Similarly, Section 3553(a) states that a court "shall impose a sentence sufficient, but not greater than necessary" to fulfill certain penological purposes, such as: the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2). A court must also consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; . . . (3) the kinds of sentences available; (4) [the sentencing range established by the Sentencing Guidelines]; (5) [any pertinent Sentencing Guidelines policy statement]; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been ...