United States District Court, S.D. New York
Decided: January 13, 2015.
For USA, Plaintiff: Jason P.W. Halperin, LEAD ATTORNEY, U.S. Attorney's Office, Sdny (White Plains), White Plains, NY; Barbara Ann Ward, Christine Meding, Kenneth Allen Polite, Jr., U.S. Attorney's Office, SDNY (St Andw's), New York, NY; Michael Dennis Lockard, United States Attorney SDNY 1 Saint Andrew, New York, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The pro se defendant moves pursuant to 18 U.S.C. § 3582(c)(2) for a reduction in his sentence. For the reasons that follow, the defendant's motion is denied.
On November 7, 2008, this Court sentenced the defendant principally to a 186-month term of imprisonment - 180 months for one Count of conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, and a 6 month consecutive sentence pursuant to 18 U.S.C. § 3147 for committing a crime while on bail. The defendant argues for a 34 month reduction of his sentence based on the recent Amendment 782 to the United States Sentencing Guidelines that was effective November 1, 2014.
The defendant's original Guidelines range was 324-405 months based on an offense level of 39 and a criminal history category of III. Amendment 782 to the Sentencing Guidelines generally reduced the offense levels for drug offenses by two levels, which would reduce the Guidelines range in this case to 262-327 months. However, this Court already varied downwardly from the then-applicable Guidelines range by sentencing the defendant to 186 months imprisonment, which is below the range now provided by Amendment 782.
Because this Court's originally imposed sentence of 186 months is below the amended range, the defendant is not eligible for a reduction of his sentence. See U.S.S.G. § 1B1.10(b)(2)(A) (" [T]he court shall not reduce the defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range." ); Dillon v. United States, 560 U.S. 817, 822, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (" [Section] 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence 'to a term that is less than the minimum of the amended guideline range." ). The only exception to this rule permitting the Court to reduce a defendant's sentence further is if the government has made a motion under § 5K1.1, 18 U.S.C. § 3553(e), or Fed. R. Crim. P. 35(b) reflecting the defendant's substantial assistance to the authorities. See U.S.S.G. § 1B1.10(b)(2)(B), and comment. n. 3. No such motion has been made by the Government in this case. Therefore, § 1B1.10(b)(2)(A) prohibits any reduction of the defendant's sentence in this case.
The defendant argues that § 1B1.10(b)(2)(A) should not be applied because it would be a violation of the Ex Post Facto Clause of the United States Constitution and because its application violates the Supreme Court's decision in Alleyne v.
133 S.Ct. 2151, 186 L.Ed.2d 314 ...