United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, District Judge.
defendant has submitted a motion for a reduction in sentence
pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment
782 to the United States Sentencing Guidelines, which
generally reduced the offense levels for controlled substance
offenses by two levels. By Memorandum Opinion and Order filed
June 13, 2016, a copy of which is attached, the Court denied
a similar motion by the defendant. The Court explained that
even if the defendant's original offense level were
reduced by 2 levels to 40, the resulting Guidelines
sentencing range of 324 to 405 months, with a criminal
history category of II, is the same Guidelines range that was
ultimately calculated at the defendant's original
sentencing. Therefore, the defendant is not entitled to a
reduction in his sentence based on Amendment 782.
is no basis to change that decision. For the reasons
explained in this Court's June 13, 2016 Memorandum
Opinion and Order, the defendant's application for a
reduction in sentence is denied.
defendant, Richard Rodriguez, has made two motions for a
reduction in his sentence pursuant to Amendments 782 and 503
to the U.S. Sentencing Guidelines. See 18 U.S.C.
§ 3582(c). Both motions are denied.
defendant was sentenced on August 16, 1994, and judgment was
entered on September 1, 1994. The defendant was subsequently
re-sentenced in a judgment entered on January 8, 1998. The
Amended Judgment deleted a conviction for conspiracy to
violate the narcotics laws, but continued to include a
conviction for operating a continuing criminal enterprise in
violation of 21 U.S.C. § 848(a) & (c), and two
substantive counts for violations of the narcotics laws.
Government has been unable to locate a copy of the transcript
from the 1998 re-sentencing. However, both parties agree that
the 1994 sentencing analysis controlled the 1998
re-sentencing and informs the Court's analysis here.
1998 Judgment reflects that Judge Martin, who was then
presiding over the case, determined that the Total Offense
Level was 40, the Criminal History Category was II,
the Guideline Sentencing Range was 324 to 405 months. Judge
Martin sentenced the defendant principally to 340 months
August 2015, the defendant brought a pro se motion
to reduce his sentence pursuant to Amendment 782 to the
Sentencing Guidelines. See 18 U.S.C. § 3582(c);
U.S.S.G § 1B1.10(a)(2)(B). Amendment 782, which became
effective on November 1, 2014, lowered the guidelines for
most drug offenses by reducing most offense levels on §
2D1.1's Drug Quantity Table by two levels. This amendment
affects not only defendants sentenced under § 2D1.1, but
also any defendant sentenced under a guideline that used the
Drug Quantity Table in a cross reference, such as §
2D1.5 (continuing criminal enterprise). Amendment 788 applied
Amendment 782 retroactively to lower the sentences of
previously sentenced defendants.
may modify the term of a sentence already imposed “in
the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has been
subsequently lowered by the Sentencing Commission . . ., if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18
U.S.C. 3582(c)(2). As a general matter, “[i]n 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 . . ., the court may reduce the defendant's term
of imprisonment as provided by 18 U.S.C. §
3582(c)(2).” U.S.S.G. § 1B1.10(a)(1). However,
“[a] reduction in [a] defendant's term of
imprisonment is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. § 3582(c)(2)
if . . . [the] amendment . . . does not have the effect of
lowering the defendant's applicable guideline
range.” U.S.S.G. § 1B1.10(a)(2)(B); see also
United States v. Ponder, No. 06cr481 (JGK), 2012 WL
1570845, at *1 (S.D.N.Y. May 4, 2012).
a threshold matter, for a defendant to be eligible for a
reduction, the amended Sentencing Guidelines range must be
lower than the range that was applied at sentencing.”
United States v. Sanchez, 99 F.Supp.3d 457,
459 (S.D.N.Y. 2015). The applicable Sentencing Guidelines
range at the time of sentencing must be determined
“before consideration of any departure provision in the
Guidelines Manual or any variance.” U.S.S.G. §
1B1.10 cmt. n.1(A). The Court is not permitted to re-impose a
previous variance or departure from the Guidelines range
unless the defendant previously received a downward departure
for providing substantial assistance to the Government.
See United States v. Erskine, 717 F.3d 131, 137 n.6
(2d Cir. 2013); Sanchez, 99 F.Supp.3d at 459. The
Sentencing Commission's policy statement as announced in
U.S.S.G. § 1B1.10 is binding on the Court. See
Dillon v. United States, 560 U.S. 817, 828-30 (2010);
see also Ponder, 2012 WL 1570845 at *1.
case, the amended Sentencing Guideline range is not lower
than the range applied at sentencing. Therefore, the
defendant is not eligible for a reduction. Under the amended
Sentencing Guidelines, the defendant's Total Offense
Level is 40, the same Total Offense Level Judge Martin used
to sentence the defendant in 1994 and 1998. The
defendant's Criminal History Category remains II,
resulting in the same Guideline Sentencing Range of 324 to
405 months used in the 1998 sentencing.
calculation of the defendant's Total Offense Level under
the amended guidelines is ...