Opinion
No. 96-40032-01-SAC.
September 5, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Martin Riley's Motion to Modify Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2). (Dk. 25). The defendant cites Amendment #599 which revises the commentary to U.S.S.G. § 2K2.4 to clarify when a defendant sentenced on a conviction under 18 U.S.C. § 924(c) may receive a weapon enhancement on the sentence imposed for the felony offense and conviction underlying the § 924(c) conviction. The defendant contends he was sentenced on his § 924(c) conviction and also received a firearm enhancement on the robbery conviction underlying his weapon conviction. The government responds that the defendant's understanding of his sentences is incorrect and that the sentences imposed here are consistent with Amendment #599.
The defendant pleaded guilty and was sentenced on counts 1, 2, 4, 5, 6, 7, and 8 of the indictment. Count 1 charged defendant with the robbery of the Taco Casa restaurant on January 31, 1996, in violation of 18 U.S.C. § 1951, and count 2 charged him with using and carrying a firearm during and in relation to the Taco Casa restaurant robbery charged in Count 1 in violation of 18 U.S.C. § 924(c)(1) and (3). Counts 4, 5, 6, 7, and 8 charged defendant with separate robberies of other business establishments on different dates, all in violation of 18 U.S.C. § 1951. The defendant was neither charged with nor pleaded guilty to any § 924(c) counts based on the robbery offenses and convictions in counts 4, 5, 6, 7, and 8.
In sentencing the defendant on these counts, the court followed the recommendations and guideline calculations set out in the presentence report ("PSR"). On the robbery conviction in count 1, the PSR used a base offense level of 20 found in U.S.S.G. § 2B3.1 and did not apply any specific offense characteristic for the firearm for the following stated reason:
Although a firearm was brandished during this robbery, because of the firearm conviction on Count 2 as it relates to Count 1, the defendant faces a mandatory consecutive five-year sentence and therefore, a five-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(C) is not appropriate as the guideline calculations on Count 1.
As for counts, 4, 5, 6, 7 and 8, the PSR did calculate five points pursuant to U.S.S.G. § 2B3.1(b)(2)(C), as the defendant had advised that he possessed a firearm during all robberies. Other than this five-point specific offense characteristic, the PSR does not attribute any additional points nor gives any more sentencing effect to the defendant's possession of a firearm during each of those robberies charged in counts 4 through 8.
This approach is entirely consistent with Amendment 599 that includes the following changes to the commentary of U.S.S.G. § 2K2.4:
If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.
U.S.S.G. Supp. to App. C, Amendment 599 (underlining added). The underlined sentence directly applies to the sentence imposed here and establishes that the sentence is consistent with the terms of Amendment 599. The defendant's request for a modified or reduced sentence pursuant to this amendment is denied.
IT IS THEREFORE ORDERED that the defendant Martin Riley's Motion to Modify Term of Imprisonment pursuant to 18 U.S.C. § 3582(c)(2). (Dk. 25) is denied.