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United States v. Parrado

United States District Court, E.D. New York

April 2, 2014

UNITED STATES OF AMERICA,
v.
JOSE BERNARDINO PARRADO, Defendant

For United States: Charles N. Rose, Assistant United States Attorney, Loretta A. Lynch, United States Attorney for the Eastern District of New York, Central Islip, NY.

Jose Bernardino Parrado, Defendant, Pro se, Post, TX.

Page 298

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

Presently before the Court is a motion by the Defendant Jose Bernardino Parrado (the " Defendant" ), pro se, for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, the Court finds that the Defendant is ineligible for a sentence reduction and therefore his motion is denied.

I. BACKGROUND

On June 30, 1994, following a jury trial, the Defendant was convicted of six counts of a twelve-count indictment, including one count of conspiracy to distribute and possess 1,035 kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § § 846, 841(b)(1)(B) (" Count One" ). Based on his conviction on that count under the United States Sentencing Guidelines Manual (the " Sentencing Guidelines" ), the Defendant faced a base offense level of 40, with a two-point enhancement for acting in a supervisory capacity, resulting in an adjusted offense level of 42.

In this regard, the August 26, 1994 Pre-Sentence Report (" PSR" ) filed by the United States Probation Department noted that with respect to Count One, the Sentencing Guidelines for a 21 U.S.C. § 846 offense was 2D1.1(a)(3), which at the time provided that offenses involving at least 500 kilograms but less than 1500 kilograms of cocaine had a base offense level of 40. As such, the PSR reported that the base offense level was 40 in the Defendant's case, because the offense he was convicted of involved 1,035 kilograms of cocaine. Further, the PSR indicated that there needed to be an adjustment for the Defendant's role in the offense; specifically, since the Defendant acted in a supervisory capacity, 2 levels needed to be added pursuant to Sentencing Guideline 3B1.1(c), resulting in a total offense level of 42. In addition, having no other previous criminal convictions, the Defendant fell within Criminal History Category I.

Accordingly, based on the total offense level of 42 and a Criminal History of Category I, the Sentencing Guidelines imprisonment range was 360 months to life. Nevertheless, because the maximum statutory term on Count One was 40 years (480 months), the restricted Sentencing Guidelines imprisonment range was 350 to 480 months.

However, the PSR advised, in relevant part, as follows:

According to information from the [United States] Sentencing Commission, there is a proposed amendment to the

Page 299

[Sentencing] Guidelines [ ] effective November 1, 1994 that will limit the maximum base offense level for certain narcotics cases. Under this proposal, the maximum base offense level for narcotics cases under Guideline 2D1.1(a) will be capped at level 38. As noted in [ ] this report, the base offense level for Count [One] is now level 40. Whereas, if the amendment is enacted, this level would be level 38. This issue could be considered for possible downward departure under the provisions of Policy Statement 5K2.0. Using the proposed amendment as guidance, the ...

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