The opinion of the court was delivered by: John G. Koeltl, District Judge:
The defendant Enrique Carty has moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c) based on recent amendments to the United States Sentencing Guidelines that lowered the sentencing ranges for offenses involving crack cocaine.
In 1995, the defendant was charged with various offenses in an indictment returned in the Western District of North Carolina (see Indictment, 95 Cr. 973 (the "North Carolina Indictment")), and in an information filed in this Court (see Information, 95 Cr. 980 (the "New York Information")). The North Carolina Indictment was transferred to New York and the cases were consolidated for sentencing. (See Sentencing Hr'g Tr. ("Sentencing Tr."), 20-21, Nov. 27, 2000.) On November 28, 1995, the defendant pleaded guilty to Count One of the North Carolina Indictment, which charged the defendant with conspiracy, in violation of 21 U.S.C. § 846, to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1). (See Plea Hr'g Tr. 25, Nov. 28, 1995 ("Plea Tr."); North Carolina Indictment.) At the plea hearing, the defendant admitted to being a part of a conspiracy to distribute crack cocaine, stating "I was part of that deal . . . I took the crack . . . I was going to help them so they could distribute it." (Plea Tr. 24-25.) The defendant did not allocute to a specific quantity of crack cocaine at the plea hearing.
The defendant also pleaded guilty to Counts One and Two of the New York Information. (Plea Tr. 25-28.) Count One charged the defendant with conspiracy to distribute and possess with the intent to distribute five kilograms and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). (New York Information.) The defendant admitted at the plea hearing that he had entered into an agreement to distribute "[o]ver five kilograms" of cocaine. (Plea Tr. 25-26.) Count Two charged the defendant with conspiracy, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute 100 grams and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). (New York Information.) The defendant pleaded guilty and stated that he had agreed to distribute and had distributed approximately 100 grams of heroin. (Plea Tr. 26-28.)
On November 27, 2000,*fn1 the defendant was sentenced by Judge Schwartz of this Court. (See Sentencing Tr. 1.) Prior to pronouncing sentence, Judge Schwartz of this Court highlighted a disagreement among the defendant, the Government, and the Probation Department regarding the quantity of crack cocaine attributable to the defendant. (See Sentencing Tr. 3-9.) The Probation Department PSR listed two different quantities of crack cocaine: paragraph 15 of the PSR attributed eleven kilograms of crack cocaine to the defendant and over twenty-two kilograms of crack cocaine to the organization with which the defendant had conspired. (Presentence Investigative Report ("PSR") ¶ 15.) Paragraph 31 of the PSR stated, "the defendant's criminal activity involved the receipt and distribution of in excess of 1.5 kilograms of crack cocaine . . . at least 5 kilograms of cocaine and approximately 116 grams of heroin . . . When these amounts of narcotics are converted to marijuana their aggregate weight is approximately 30,300 kilograms of marijuana." (PSR ¶ 31.)*fn2
The Government took the position that all of the crack cocaine in paragraph 15 of the PSR was attributable to the defendant. (Sentencing Tr. 7.) The defendant argued that, despite his plea allocution to the contrary, he had not been involved in the distribution of crack cocaine. (Sentencing Tr. 3.) After recounting the positions of the PSR, the Government, and the defendant, Judge Schwartz concluded, "[t]hat's all I have before me. And now I am being asked to not only find that [the defendant] is responsible for a certain quantity of crack cocaine, but specifically for more than 1.5 kilograms. I do not have enough in the record to make such [a] finding." (Sentencing Tr. 4.) Judge Schwartz indicated that there was insufficient information in the record to make a finding as to the quantity of crack cocaine attributable to the defendant and offered the defendant a Fatico hearing to determine whether the defendant had distributed crack, and if so, what amount could be attributed to him for sentencing purposes. (Sentencing Tr. 6-8.)
The defendant decided that he did not want a Fatico hearing but rather, "would stand by the statements he made at the plea," and "would consent to the quantity of one and a half [kilograms of crack cocaine]." (Sentencing Tr. 9.) Judge Schwartz reiterated, "your client [does] not wish to have a Fatico hearing" and "accept[s] that he is responsible for distribution of more than 1.5 kilograms of crack cocaine." (Sentencing Tr. 9.) The defendant agreed. (Sentencing Tr. 9.) The Judge made no finding as to what "more" meant, but rather relied on the "1.5 kilograms or more" as the amount because, at the time, 1.5 kilograms of crack cocaine was sufficient to trigger the highest base offense level under the Sentencing Guidelines. (Sentencing Tr. 21-22.) Despite the Government's initial argument that the entirety of the crack cocaine in the PSR should be attributed to the defendant, the Government did not object to the defendant's concession to 1.5 kilograms or argue that more drugs were in fact attributable to the defendant.
The Judge then pronounced sentence. Judge Schwartz grouped together the two counts of the New York Information and the one count of the North Carolina Indictment to create the basis for a joint sentence, and announced that "[t]he base offense level for these crimes, [is] set forth in paragraphs 30 and 31 of the [PSR]. . . ." (Sentencing Tr. 21.) The Judge calculated that, "the defendant's criminal activity, as he has now conceded, involved the receipt and distribution of in excess of 1.5 kilograms of crack cocaine . . . at least five kilograms of cocaine and approximately 116 grams of heroin in New York. When these amounts of narcotics are converted to marijuana, their aggregate weight is approximately 30,300 kilograms of marijuana. And under the drug quantity table, section 2D1.1(c)(1), the base offense level is 38." (Sentencing Tr. 21-22.)
Judge Schwartz granted a three-level acceptance of responsibility downward adjustment for the defendant's acceptance of responsibility for "more than 1.5 kilograms of crack cocaine" and the remainder of the crimes to which he pleaded guilty. (Sentencing Tr. 26.) However, the Judge also found a two level obstruction of justice enhancement because the defendant had fled from the United States to the Dominican Republic. (Sentencing Tr. 26-28.) The Court declined to find an enhancement based on the defendant's role in the offense, as suggested in the PSR, as well as several downward adjustments requested by the defendant. (Sentencing Tr. 22.) Based on the defendant's net adjusted offense level of 37 and Criminal History Category III, Judge Schwartz determined that the defendant's Guidelines sentencing range was 262 to 327 months imprisonment (Sentencing Tr. 28) and sentenced the defendant to 290 months imprisonment, "somewhere in the middle of the
[G]uideline[s] range . . . ." (Sentencing Tr. 33.) The Judge also determined that the defendant should get credit for the time he served while imprisoned in the Dominican Republic awaiting extradition back to the United States. (Sentencing Tr. 32-33.)
On November 28, 2000, Judge Schwartz filed written judgments in both cases. (See Judgment, 95 Cr. 0973; Judgment, 95 Cr. 0980 (collectively "Judgments").) In the Statement of Reasons in each of the Judgments, Judge Schwartz checked the box that provided "[t]he court adopts the factual finding and guideline application in the presentence report except . . . ." (Judgments.) In the space provided under "except," the Judge indicated that he had departed from the PSR in two ways: by finding no "Role Adjustment" and by finding an "Obstruction of Justice" enhancement. (See Judgments.)
After the sentence was imposed, the defendant appealed. The Second Circuit Court of Appeals vacated the defendant's sentence based on its determination that the district court may have misunderstood its power to grant a sentencing departure for the defendant's confinement conditions in the Dominican Republic. See United States v. Carty, 264 F.3d 191, 196-97 (2d Cir. 2001) (per curiam). The Court of Appeals remanded the case for reconsideration of the defendant's request for a downward departure on those grounds. Id. at 197. On November 9, 2001, Judge Schwartz entered amended judgments and resentenced the defendant again to a term of 290 months ...