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United States v. Rodriguez

United States District Court, S.D. New York

June 10, 2016

UNITED STATES OF AMERICA,
v.
RICHARD RODRIGUEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN G. KOELTL, District Judge.

         The 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.

         There 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.

         SO ORDERED.

         The 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.[1]

         I.

         The 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.

         The 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.

         The 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, [2] and the Guideline Sentencing Range was 324 to 405 months. Judge Martin sentenced the defendant principally to 340 months imprisonment.

         In 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.

         A court 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).

         “As 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.

         In this 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.

         The calculation of the defendant's Total Offense Level under the amended guidelines is ...


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