United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Before the court is Defendant's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2). (Def. Mot. (Dkt. 176).) For the reasons discussed below, Defendant's motion is DENIED.
On April 26, 2005, Defendant was convicted of conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 846; distribution and possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1); and unlawful use of a firearm in violation of 18 U.S.C. §924(c)(1)(A)(I). (Apr. 26, 2005, Min. Entry (Dkt. 107).)
Prior to sentencing, the Probation Department prepared a Presentence Investigation Report ("PSR"), which laid out sentencing options under the United States Sentencing Guidelines ("U.S.S.G."). The PSR concluded that Defendant was personally responsible for over 1.5 kilograms of cocaine base. (Gov't Resp. (Dkt. 180), Ex. A (filed under seal).) Pursuant to U.S.S.G. § 2D1.1(c), Defendant's base offense level for the drug counts was calculated to be 38. (Id.) The Probation Department applied a three-point enhancement for Defendant's role as a manager or supervisor pursuant to U.S.S.G. § 3B1.1(b), and a two-point enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 because Defendant committed perjury at trial. (@ With a resulting total offense level of 43 and Defendant's criminal history of I, the U.S.S.G. range for the drug counts was life imprisonment. (Id.) In addition, Defendant's conviction under 18 U.S.C. § 924(c)(1)(A)(I) for unlawful use of a firearm carried a five-year mandatory term of imprisonment, to be imposed consecutively to any other term of imprisonment imposed. (Id.)
On June 28, 2006, this court sentenced Defendant to 300 months of imprisonment for the drug charges followed by 60 months for the firearms charge. (Jun. 28, 2006, Min. Entry (Dkt. 135).) The court made a downward departure from the life sentence due to the existence of "factors in [Defendant's] background... that would make [him] at some point capable of leading a law-abiding life." (Id.)
Defendant appealed his conviction and sentence, arguing that: (1) the court erred in failing to suppress Defendant's statements as well as evidence seized during a search of his home; (2) the court erred in its jury charge; and (3) Defendant's sentence was unreasonable. (Not. of App. (Dkt. 137).) On October 8, 2009, the Court of Appeals for the Second Circuit affirmed Defendant's conviction, but vacated his sentence and remanded the case for resentencing consistent with Kimbrough v. United States, 552 U.S. 85 (2007), and United States v. Regalado, 581 F.3d 143 (2d Cir. 2008). See United States v. Worjloh, 546 F.3d 104 (2d Cir. 2008). On January 11, 2010, this court resentenced Defendant to a total of 240 months of imprisonment and reduced the supervised release to 10 years. (Jan. 14, 2010, Order (Dkt. 160).) This constituted a substantial downward departure from the amended Guidelines range of 324 to 405 months for the drug counts, which was in force at the time of resentencing.
In 2010, Congress enacted the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010) ("FSA"), which reduced the crack-cocaine to powder-cocaine ratio from 100:1 to 18:1. The United States Sentencing Commission issued Amendment 750 to reflect this change in U.S.S.G. § 2D1.1(c), and Amendment 759, which stated that Parts A and C of Amendment 750 may be applied retroactively. See U.S.S.G. § 181.10(c) ("2011 Amendments").
On November 28, 2011, Defendant filed a pro se Motion for Reduction of Sentence pursuant to 18 U.S.C. § 3582(c)(2). (Def. Mot.) On August 6, 2012, Defendant's counsel filed a Memorandum in Support of Defendant's Motion. (First Def. Mem. (Dkt. 183).) On November 11, 2013, Defendant filed a supplementary Memorandum. (Second Def. Mem. (Dkt. 186).) Defendant moves the court to reduce his sentence pursuant to the FSA and the revised Guidelines in proportion to the court's previous downward departure from the previously applied range of 324 to 405 months. (Def. Mot. at 4.) The Government opposes Defendant's motion, arguing that Defendant is not entitled to any further reductions because his current sentence is already below the revised Guidelines range of 262 to 327 months. (See Gov't Resp.)
II. LEGAL STANDARD
The Supreme Court has established a "two-step inquiry" for district courts deciding motions for sentence reduction under 18 U.S.C. § 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 825 (2010); see also United States v. Christie, 736 F.3d 191, 194-95 (2d Cir. 2013). The district court must first determine whether a defendant is "eligible for a reduction in sentence, which requires that such a reduction would be consistent with applicable policy statements issued by the Sentencing Commission-namely § 181.10." Id . (emphasis in original) (quoting United States v. Mock, 612 F.3d 133, 137 (2d Cir. 2010)) (internal quotation marks omitted). To be eligible, a defendant must have been "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o)." 18 U.S.C. § 3582(c)(2). If a defendant is eligible for a sentence reduction, the court will proceed to the second step and consider whether a reduction is warranted. Dillon, 560 U.S. at 826.
Under the first prong of the inquiry established in Dillon, the issue is whether Defendant is eligible for a reduction in sentence, consistent with U.S.S.G. § 1B1.10. The commentary to § 1B1.10 states that "the court shall use the version of this policy statement that is in effect on the date on which the court reduces the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)." U.S.S.G. § 1B1.10 cmt. 6. The current version, amended in 2011, establishes that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range" except where the defendant has provided "substantial assistance to authorities." U.S.S.G. §§ 1B1.10(b)(2)(A)-(B).
Both Defendant and the Government are in agreement about the Guidelines calculation in this case. (See Def. Mot. at 4; Gov't Resp. at 3.) Pursuant to the amended U.S.S.G. § 2D1.1(c), the base offense level for Defendant's drug counts is now 34, instead of the original 38. Applying the enhancements made earlier, Defendant's final offense level is 39, instead of the original 43. With Defendant's criminal ...