United States District Court, E.D. New York
DORA L. IRIZARRY, District Judge.
On October 15, 2013, pro se  defendant Miguel Luciano ("Defendant") filed this motion requesting a sentence modification pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment 706 to the United States Sentencing Guidelines ("Sentencing Guidelines") which became effective on November 1, 2007 (reducing by two the offense level applicable to most cocaine base ("crack") offenses), and The Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-222, 124 Stat. 2372 (2010) (altering the threshold quantities of crack that trigger statutory minimum sentences applicable to violations of 21 U.S.C. § 841). ( See Dkt. Entry No. 568.) The Court denied Defendant's motion ( see March 2, 2011 Summary Order ("3/2/11 Or."), Dkt. Entry No. 592), which Order the Second Circuit affirmed ( see March 27, 2012 Mandate, Dkt. Entry No. 668).
Defendant now moves, for the second time, for a sentence reduction, arguing that he is entitled to such relief under 18 U.S.C. § 3582(c)(2), Sentencing Guideline § 1B1.10, and Amendment 750 (as amended by Amendment 759) to the Sentencing Guidelines ( see Defendant's Second Motion for Resentencing ("Def.'s 2nd Mot."), Dkt. Entry No. 781), which the Government opposes ( see Government's Opposition to Def.'s 2nd Mot. ("Gov't Opp'n"), Dkt. Entry No. 783). For the reasons set forth more fully below, Defendant's motion is denied.
"[I]n 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... the court may reduce the term of imprisonment...." 18 U.S.C. § 3582(c)(2). Further, Sentencing Guideline § 1B1.10 states that: "In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment...." U.S.S.G. § 1B1.10(a)(10). In support of his request for a reduced sentence, Defendant relies on Part A of Amendment 750, which, notably, is listed in subsection (c) of Sentencing Guideline § 1B1.10. See U.S.S.G. § 1B1.10(c). Part A of Amendment 750 is a retroactive amendment that altered the offense levels in U.S.S.G. 2D1.1 applicable to crack.
However, application of Amendment 750 does not result in a sentence reduction for Defendant. The evidence in the record established that Defendant conspired to distribute 1.5 kilograms of crack. ( See Plea Agreement, Exh. A to the Gov't Opp'n at 2-3; Addendum to PSR ¶ 17.) Under the amended U.S.S.G. 2D1.1, the base offense level for conspiring to distribute 1.5 kilograms of crack decreased from 36 (the applicable level at the time Defendant was sentenced) to 34. Notably, Defendant was sentenced as a career offender with a criminal history of VI. ( See Plea Agreement at 3; Addendum to PSR ¶ 115.) Calculating Defendant's sentence under the amended U.S.S.G. 2D1.1 results in a sentence of 262 to 327 months, which is greater than the statutory maximum of 240 months to which he was sentenced originally. Thus, application of Amendment 750 does not result in any decrease to Defendant's sentence. Under these circumstances, courts routinely deny requests for resentencing. See, e.g., United States v. Twitty, 473 F.Appx. 300, 301 (4th Cir. 2012) (per curiam) (Defendant "is currently serving the statutory maximum sentence of 240 months' imprisonment.... But for the ...