Opinion
10 cr 74 (PKC)
11-02-2020
UNITED STATES OF AMERICA, v. JOSE LUIS GRACESQUI, Defendant.
ORDER
Defendant Jose Luis Gracesqui, proceeding pro se, moves for a reduction of sentence pursuant to the First Step Act of 2018.
The defendant was convicted after trial on Count One charging him with intentionally and knowingly killing, and counseling, commanding, inducing, procuring, and causing the intentional killing of Richard Diaz while engaged in a conspiracy to distribute and to possess with the intent to distribute one kilogram or more of mixtures or substances containing a detectable amount of heroin in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2, Count Two charging him with participating in a murder-for-hire conspiracy in violation of 18 U.S.C. § 1958 and Count Three charging him with a substantive count of murder-for-hire in violation of 18 U.S.C. § 1958 and § 2. He was sentenced principally to three concurrent terms of life imprisonment.
Gracesqui argues that his conviction for a violation of section 848(e)(1)(A) was dependent upon conduct that was punishable under section 841(b)(1)(A) and that the punishment under section 841(b)(1(A) has been reduced by the First Step Act and therefore he is eligible for a sentence reduction under section 3582(c)(2) of title 18. The First Step Act provides that "[a] court that imposed a sentence for a covered offense may, on motion of the defendant ... impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." First Step Act of 2018 § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222. A "covered offense" means "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act . . . that was committed before August 3, 2010." Id. There is no dispute that Gracesqui's offense conduct ended in 1999.
Gracesqui's claim fails because he was not convicted of a crime whose penalties have been reduced by section 2 or 3 of the Fair Sentencing Act. He was convicted on Count One of an intentional killing in the course of a crime punishable under section 841(b)(1)(A) in violation of section 848(e)(1)(A. He was not convicted under section 841(b)(1)(A) and any reduction in the penalty under section 841(b)(1)A) has no impact on the available sentence range for the crime charged in Count One. Further, the murder furthered a heroin distribution conspiracy and the penalties for heroin distribution were not reduced in section 2 or 3 of the Fair Sentencing Act. Thus, he is not eligible for a sentence reduction. United States v. Echeverry, No. 19-2202-CR, 2020 WL 6306957, at *2 (2d Cir. Oct. 28, 2020) ("Because [defendant's] sentence could not have been lower even if 'sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed,' the district court correctly concluded that it lacked the authority to reduce [defendant's] sentence.")
Defendant Gracesqui's motion (Doc. 276) for a sentence reduction and other associated relief is DENIED.
This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
November 2, 2020