Opinion
No. 02 Cr. 654-1 (NRB).
June 14, 2005
David Rody, New York, NY, Assistant United States Attorney United States Attorney's Office.
MEMORANDUM AND ORDER
On January 10, 2003, the defendant pled guilty to a two count indictment involving the distribution and conspiracy to distribute heroin. On August 14, 2003, the defendant and the Government signed a written agreement stipulating as to the application of the Sentencing Guidelines to defendant's conduct. Under that agreement, the defendant's offense level was 27 and his sentencing range was 70 to 87 months. On September 4, 2003, this Court sentenced defendant to seventy months imprisonment. Now pending is defendant Alex Gomez's petition to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). For the following reasons, defendant's petition is denied.
Under 18 U.S.C. § 3582(c)(2), a Court may reduce a term of imprisonment once 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 pursuant to 28 U.S.C. 994(o)." Such a reduction may be made "if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." Id.
The defendant does not allege that the Sentencing Commission has reduced the Guidelines range applicable to his conduct. Instead, defendant argues that the recent Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (2005), effectively lowered the applicable range by eliminating the mandatory nature of the Sentencing Guidelines. Defendant argues that "[i]f the ranges are no longer binding, then there is no `mandatory' floor or ceiling . . ., and consequently a valid argument exists that all the ranges have been lowered." Def.'s Mot. at 4. Under defendant's theory, the Booker decision resulted in an across the board lowering of the applicable sentencing ranges, triggering the provisions of 18 U.S.C. § 3582(c)(2).
Despite its creativity, defendant's motion is denied because the statutory requirements of section 3582(c)(2) have not been met. While the Booker decision did change the application of the Guidelines, the actual ranges themselves have not changed at all. There has been no lowering of the range applicable to defendant by the Sentencing Commission, nor are there any applicable policy statements from the Sentencing Commission to apply. Therefore, the threshold conditions for a reduction pursuant to section 3582(c) (2) have not been met. Moreover, it has been clearly established that the Booker decision is not retroactive, and therefore does not apply to cases where the sentence was final as of January 12, 2005. Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005). Defendant never appealed his sentence imposed on September 4, 2003, and thus it became final long before Booker. Accordingly, defendant may not use that decision to collaterally attack the validity of his earlier sentence.
For the reasons stated above, defendant's motion is dismissed.
IT IS SO ORDERED.