Opinion
03 Cr. 601 (RWS).
August 20, 2008
MEMORANDUM OPINION AND ORDER
On March 4, 2008, Defendant Kaseem Stukes ("Stukes" or the "Defendant") filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), for a sentence reduction pursuant to the recent amendments to the United States Sentencing Guidelines ("U.S.S.G" or the "Guidelines"). See U.S. Sentencing Guidelines Manual, App. C, Amdts. 706, 711 (2007). On May 16, 2008, the Government filed its opposition. For the reasons set forth below, Stukes' motion is denied.
Prior Proceedings
On November 25, 2003, after a jury trial, Stukes was convicted of: (1) distribution of crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C); (2) using and carrying a firearm during and in relation to a drug trafficking crime, in violation 18 U.S.C. § 924(c)(1)(A)(i); (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (4) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C).
In November 2004, Stukes was sentenced to terms of 46 months' imprisonment for Counts 1, 3, and 4, to run concurrently with each other, and a term of 60 months, the statutory minimum, for Count 2, to run consecutively, for a total of 106 months' imprisonment. United States v. Stukes, No. 03 Cr. 601 (RWS), 2004 U.S. Dist. LEXIS 23945 (S.D.N.Y. Nov. 23, 2004). In determining Stukes' offense level for the purposes of Counts 1, 3, and 4, the Court grouped together Counts 1 and 4, the narcotics offenses, pursuant to U.S.S.G. § 3D1.2(d), and, based on Stukes' distribution and/or possession of a total of 2.6872 grams of crack, determined his base offense level to be 20, pursuant to U.S.S.G § 2D1.1. Id. at *3-4. The Court then added one offense level for Count 3, the felon-in-possession count, pursuant to U.S.S.G. § 3D1.4, yielding a combined offense level of 21. Based upon his combined offense level of 21 and criminal history category of III, Stukes' Guidelines range was 46-57 months' imprisonment for Counts 1, 3 and 4. Id. at *5.
In October 2005, after the parties stipulated to a pre-appeal remand for resentencing pursuant to United States v. Crosby, 397 F. 3d 103 (2d Cir. 2005), the Court held an evidentiary hearing for that purpose, and Stukes was resentenced to 33 months' imprisonment on Counts 1, 3 and 4, to run concurrently to each other and consecutively to 60 months' imprisonment on Count 2, for a total of 93 months' imprisonment. United States v. Stukes, No. 03 Cr. 601 (RWS), 2005 U.S. Dist. LEXIS 23394 (S.D.N.Y. Oct. 7, 2005). After taking into consideration the Guidelines and the factors set forth in 18 U.S.C. § 3553(a), in accordance withCrosby and United States v. Booker, 543 U.S. 220 (2005), the Court determined that a sentence below that recommended by the Guidelines was appropriate to avoid the unwarranted sentencing disparities between crack and powder cocaine sentences imposed under the Guidelines. Stukes, 2005 U.S. Dist. LEXIS 23394 at *4-6. Rather than applying the 100:1 ratio between crack and powder cocaine then contained in the Guidelines, the Court applied the 20:1 ratio that had recently been proposed by the U.S. Sentencing Commission and applied by other district courts.Id. In doing so, the Court reasoned: "Use of [a 20:1 ratio] in the present case will mitigate the disparity between this sentence and one imposed on a defendant that engaged in substantially similar conduct that involved powder cocaine rather than crack."Id. at *6.
In calculating Stukes' sentence based upon a 20:1 ratio, the Court converted the 2.6872 grams of crack for which Stukes had been found responsible into 53.744 grams of cocaine (2.6872 × 20=53.7440), resulting in an offense level of 16. The Court added two levels for Stukes' felon-in-possession charge, pursuant to U.S.S.G. § 3D1.4, yielding a combined offense level of 18. Id. at *6-7. With an offense level of 18 and a criminal history category of III, Stukes' Guidelines range was 33 to 41 months.
Stukes' current release date is July 18, 2010.
Effect of Amendments to Sentencing Guidelines
Effective November 1, 2007, the United States Sentencing Commission amended the Guidelines to lower the sentencing range for certain offenses involving crack. U.S. Sentencing Guidelines Manual App. C, Amdt. 706 (2007). On December 11, 2007, the Commission adopted amendments to § 1B1.1 of the Guidelines, authorizing retroactive application of the amended crack Guidelines, effective March 3, 2008. Id., Amdt. 711.
With regard to the extent of sentence reductions authorized by the amendments, the newly amended U.S.S.G. § 1B1.10 reads, in relevant part:
(A) In General. — Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range. . . .
(B) Exception. — If the original term of imprisonment was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range . . . may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker , 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
U.S.S.G § 1B1.10(b)(2)(A)-(B) (emphasis added).
While the Government states that the Court has the discretion to reduce Stukes' sentence, Gov't Ltr. Br. at 1, it argues, and the Court agrees, that a sentence reduction is not appropriate here, as the Court took the Guidelines' crack-cocaine sentencing disparity into consideration when resentencing Stukes in 2005. In fact, in calculating Stukes' sentence based on a 20:1 ratio, the Court employed a crack to cocaine ratio lower than that effected by the amended guidelines.See Kimbrough v. United States, 128 S. Ct. 558, 573 (2007) (noting that the amended Guidelines "advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1."). Under the amended Guidelines, the offense level for an offense involving 2.6872 grams of crack is 18, two levels higher than that used to calculate Stukes' sentence in 2005. After grouping his narcotics and felon-in-possession offenses pursuant to U.S.S.G. § 3D1.4, his total offense level under the amended Guidelines is 20, which, based on his criminal history category of III, yields a Guidelines range of 41-51 months' imprisonment, 8-18 months greater than the sentence imposed in 2005.
In determining whether and to what extent a sentence reduction is warranted under the amended Guidelines, consistent with 18 U.S.C. § 3582(c)(2), the Court also considers the factors set forth in 18 U.S.C. § 3553(a), including "(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." See U.S.S.G. § 1B1.10, Cmt. 1(B)(i). The Court also considers the nature and seriousness of any danger to any person or to the community that may be posed by a reduction in the Defendant's term of imprisonment, see U.S.S.G. § 1B1.10, Cmt. 1(B)(ii), and takes into account the post-sentencing conduct of the Defendant.See U.S.S.G. § 1B1.10, Cmt. 1(B)(i), (iii).
As in October 2005, the Court believes that a sentence of 33 months for Stukes' crack-related charges is sufficient, but not greater than necessary, to achieve the objectives set forth in § 3553(a).
Conclusion
For the reasons set forth above, Stukes' motion for a sentence reduction is denied.
The Defendant is advised that any notice of appeal must be filed within ten days of entry of this order. See Fed.R.App.P. 4(b)(1)(A); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir. 2002).
It is so ordered.