Opinion
93 Cr. 339 (JGK).
July 7, 2009
MEMORANDUM OPINION AND ORDER
The defendant, Richard Rodriguez, moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 591 of the United States Sentencing Guidelines (the "Guidelines"). The defendant is currently incarcerated in the federal correctional institution in Otisville, New York. The defendant seeks to reduce his sentence of 340 months imprisonment, arguing that Judge Martin of this Court misapplied the sentencing Guideline corresponding to the offense of which the defendant was convicted and thereby improperly increased the defendant's Offense Level, resulting in the imposition of an erroneously high sentence.
I
On December 21, 1993, the defendant was indicted for his role in a heroin trafficking organization. The defendant was charged with conspiracy to distribute heroin and to possess it with intent to distribute, in violation of 21 U.S.C. § 846; conducting a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848(a); multiple instances of possessing heroin with the intent to distribute it, in violation of 21 U.S.C. § 841(b)(1); and using and carrying a firearm during and in relation to the heroin conspiracy, in violation of 18 U.S.C. §§ 924(c) and 2. On February 16, 1994, after a jury trial, the defendant was convicted of involvement in a narcotics conspiracy, leadership of a CCE, and two counts of possession of heroin with the intent to distribute it. The defendant was acquitted of two counts of possession of heroin with the intent to distribute it. The firearms charge was dismissed during the trial in accordance with the Government's request.
The defendant was sentenced initially by Judge Martin on August 16, 1994 principally to 340 months imprisonment. The Second Circuit Court of Appeals affirmed the conviction and sentence in an unpublished order. On April 24, 1997, the defendant moved to vacate his convictions pursuant to 28 U.S.C. § 2255. On December 31, 1997, Judge Martin vacated the defendant's narcotics conspiracy conviction in accordance with Rutledge v. United States, 517 U.S. 292, 300 (1996), which held that a narcotics conspiracy charge is a lesser included offense of the charge of operating a CCE. United States v. Rodriguez, No. 93 Cr. 339, 1997 WL 799116, at *1 (S.D.N.Y. Dec. 31, 1997).
On January 8, 1998, Judge Martin resentenced the defendant to reflect the CCE conviction. The Court stated in the judgment that it adopted the Guideline calculations in the Presentence Report (the "PSR"). Judge Martin imposed the same 340 month sentence. The Court found that the defendant had a Total Offense Level of 40, a Criminal History Category of II, and a Guidelines Sentencing Range of 324-405 months. Subsequently, the Second Circuit Court of Appeals twice denied the defendant's habeas petitions.
II
The defendant moves for a reduction of his sentence on the grounds that Judge Martin misapplied § 2D1.5 of the Guidelines, the Guideline for "Continuing Criminal Enterprise; Attempt or Conspiracy," by imposing a two level enhancement for possession of a dangerous weapon pursuant to § 2D1.1(b)(1). The defendant argues that because Amendment 591 requires the sentencing court to apply the Guideline in the statutory index corresponding to the offense of which the defendant was convicted, Judge Martin erred in looking outside § 2D1.5 to determine the defendant's Offense Level. § 2D1.5 contains no enhancement for the possession of a dangerous weapon. The defendant calculates his Total Offense Level at 38 and Criminal History Category at II, and, accordingly, claims that he is entitled to be resentenced within a correspondingly lower sentencing range (262-327 months).
The Government responds that the defendant is not eligible for a sentence reduction because his Offense Level was properly calculated. The Government argues that Judge Martin applied § 2D1.5 correctly because this provision cross-references to, and therefore fully incorporates, § 2D1.1. Moreover, the Government contends that nothing in Amendment 591 prohibits such cross-referencing.
18 U.S.C. § 3582(c)(2) provides that a court may reduce a defendant's sentence if the defendant was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered . . . [and] if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The relevant policy statement is § 1B.10 of the Guidelines, which provides that "[a] reduction in the 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 . . . [Amendment 591] does not have the effect of lowering the defendant's applicable guideline range." U.S. Sentencing Guide Manual §§ 1B1.10(a)(2)(B), (c). Amendment 591, which came into effect on November 1, 2000 and applies retroactively, "requires that the initial selection of the offense guideline be based only on the statute (or offense) of conviction rather than on judicial findings of actual conduct . . . that will never be made by the jury." United States v. Rivera, 293 F.3d 584, 585 (2d Cir. 2002); see also Eubanks v. United States, Nos. 97 Civ. 3891, S7 92 Cr. 392, 2005 WL 1949474, at *8 (S.D.N.Y. Aug. 11, 2005). The Amendment is "intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction. . . ." U.S. Sentencing Guide Manual app. C, vol. II, cmt. at 31 (Nov. 1, 2000).
Here, Judge Martin followed Amendment 591 to the letter. The defendant was convicted of operating a CCE, requiring Judge Martin to apply § 2D1.5 of the Guidelines. To calculate a defendant's Base Offense Level, § 2D1.5 instructs the sentencing court to apply the greater of "(1) 4 plus the offense level from § 2D1.1 applicable to the underlying offense; or (2) 38." U.S. Sentencing Guide Manual § 2D1.5(a). It is plain that § 2D1.5 specifically and fully incorporates § 2D1.1 when a defendant's Offense Level exceeds 38, as it does here. Section 2D1.1(b)(1) includes a two level enhancement if a dangerous weapon was possessed. See also U.S. Sentencing Guide Manual § 2D1.1 cmt. n. 3 (2008). Therefore, the enhancement for possession of a weapon was properly applied. Moreover, nothing in Amendment 591 prohibits this cross-reference. See, e.g., United States v. Davis, 205 Fed. Appx. 28, 30 (3d Cir. 2006) (holding that Amendment 591 "does not permit the court to ignore the specific directions provided by the guidelines."); United States v. Hurley, 374 F.3d 38, 40-41 (1st Cir. 2004) (holding that cross-referencing is mandated by the Guidelines and to hold otherwise "would largely nullify the numerous cross references appearing in Chapter Two — a result that the Commission clearly did not contemplate in promulgating the amendment.") (collecting cases); United States v. Ross, 37 Fed. Appx. 714, 2002 WL 1219167, at *1 (5th Cir. 2002) (holding that "Amendment 591 does not bar either the district court's application of [the Guideline's] cross-reference or its consideration of [the defendant's] relevant conduct . . . in applying that cross-reference.").
As the Government correctly points out, it is not clear that Judge Martin actually included a two level enhancement for possession of a dangerous weapon pursuant to § 2D1.1(b)(1). The parties have been unable to locate a sentencing transcript. The judgment calculates the total Offense Level as 40, which the defendant asserts includes a two level enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon. Even assuming that is true, the enhancement was properly included.
Because the defendant's Offense Level was calculated appropriately, Amendment 591 did not have the effect of lowering the defendant's applicable Guideline range. Accordingly, a reduction of the defendant's sentence is not authorized under 18 U.S.C. § 3582(c)(2). U.S. Sentencing Guide Manual §§ 1B1.10(a)(2)(B), (c). Therefore, the defendant's motion for a reduced sentence is denied.