Opinion
03 Cr. 285 (RWS).
September 21, 2010
Pro Se, FRANCISCO HERNANDEZ, # 52691-054, Northeast Ohio Correctional Center, Youngstown, OH.
Attorneys for United States of America, PREET BHARARA, United States Attorney for the Southern District of New York, New York, NY, By: Rachel P. Kovner.
OPINION
Defendant Francisco Hernandez ("Defendant" or "Hernandez") has moved in motions dated February 5, 2010 and July 17, 2010 for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A)(i) and United States Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines") § 1B1.10(c) based on changes to the Sentencing Guidelines addressing crack cocaine offenses and on the ground that the Fair Sentencing Act of 2010 included additional changes to the offense levels associated with crack cocaine offenses, respectively. For the reasons given below, Defendant's motions are denied.
Prior Proceedings and Factual Background
On October 20, 2003, Information S1 03 Cr. 285 (RWS) was filed, charging Defendant in four counts. Count One charged Defendant with conspiring to violate the law of the United States by unlawfully importing, manufacturing, and distributing firearms in violation of 18 U.S.C. §§ 371 and 922(1)(A). Count Two charged Defendant with conspiring to violate the narcotics laws of the United States by distributing and possessing with intent to distribute one kilogram and more of mixtures and substances containing heroin and 50 grams and more of mixtures and substances containing cocaine base, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(a), and 846. Count Three charged Defendant with conspiring to violate the narcotics laws of the United States by distributing and possessing with intent to distribute mixtures and substances containing a detectable amount of marijuana. Count Four charged Defendant with conspiring with others to commit robberies in violation of 18 U.S.C. § 1951(b)(1).
Defendant entered a guilty plea to all four counts in the Information that same day before Magistrate Judge Kevin Nathaniel Fox. On October 31, 2003, this Court entered an order accepting Defendant's guilty plea.
A Presentence Investigation Report ("PSR") prepared on January 17, 2008 calculated Defendant's Guidelines Range to be 120 to 121 months. In so doing, the PSR took into account the reduction for crack cocaine offences described at U.S.S.G. § 2D1.1, Application Note 10(D)(i), reducing Defendant's offense level from 34 to 32. (PSR para. 43.) The PSR further reduced Defendant's offense level from 32 to 29 in light of his acceptance of responsibility. (PSR para. 76-79). The PSR found Defendant to have a criminal history of category II, and set Defendant's sentencing range under the Guidelines at 97-121 months. This range did not factor in the mandatory minimum sentence of 120 months applicable to Count Two, which, once included by the Probation Office, brought Defendant's Guidelines Range to 120 to 121 months, pursuant to U.S.S.G. § 5G1.1(c)(2). (PSR p. 19). The Probation Office recommended a sentence of 120 months on Counts Two, Three, and Four, and a sentence of 60 months on Count One, with all sentences to run concurrently. (PSR p. 19).
On October 6, 2008, this Court accepted the PSR's recommendation and sentenced Defendant principally to a term of imprisonment of 120 months. That sentence included a term of 120 months' imprisonment under Count Two of the Information, 120 months' imprisonment under Counts Three and Four of the Information, and a term of 60 months' imprisonment under Count One of the Information, with all sentences to run concurrently.
Defendant filed a notice of appeal on October 15, 2007, and his appeal of his sentence is currently pending before the Second Circuit.
On February 5, 2010, Defendant filed a motion under 18 U.S.C. § 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.10(c), seeking a reduction of his sentence based on changes to the Sentencing Guidelines addressing crack cocaine offenses. On July 16, 2010, Defendant filed a second motion seeking a reduction in sentence on the ground that the Fair Sentencing Act of 2010 included additional changes to the offense levels associated with crack cocaine offenses.
Applicable Law
Though there is a general policy against district courts modifying terms of imprisonment once imposed, "in limited circumstances, a sentence reduction may be authorized by Congress and the Sentencing Commission." United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (citing Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007)). Defendant relies upon 18 U.S.C. § 3582(c)(2), which provides that sentenced defendants may move the court to reduce their sentences where the Sentencing Commission has lowered their sentencing range pursuant to 28 U.S.C. § 994(o). Such reduction must be "consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Sentencing Guidelines § 1B1.10 identifies those amendments that a court may apply retroactively pursuant to 18 U.S.C. § 3582(c)(2). Amendments 706 and 711 altered the Guidelines applicable to crack cocaine offences, providing for reduced sentences under certain circumstances, and were made effective on November 1, 2007. U.S.S.G. § 1B1.10; U.S.S.G. App. C.
The relief provided by § 3582(c)(2) is only available to a defendant when an amendment listed in Section 1B1.10(c) affects his guideline range. U.S.S.G. App. C. U.S.S.G. § 1B1.10(a) provides:
(1) In General. — In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
(2) Exclusions. — 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 —
. . . .
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range.Id. The commentary to this provision further states that a sentence shall not be reduced under § 3582(c)(2) where an amendment will not reduce a defendant's guideline range because of "the operation of another . . . statutory provision (e.g., a statutory mandatory minimum term of imprisonment)." Id., comment 1(A).; see also United States v. Williams, 551 F.3d 182, 185-6 (2d Cir. 2009).
Defendant's Motions are Denied Because His Sentence Was Unaffected by the Reduction in Crack Cocaine Sentences
Defendant is ineligible for sentence reduction under 18 U.S.C. § 3582 for three reasons: (1) Defendant was sentenced under the amended Sentencing Guidelines; (2) Defendant was sentenced to the mandatory minimum for both his crack cocaine offense and his heroin offense; and, (3) the Fair Sentencing Act of 2010 does not alter Defendant's mandatory minimum sentence.
The PSR which formed the basis of Defendant's sentence took into account the November 1, 2007 amendments to the Sentencing Guidelines, which provided for reduced penalties for offenses involving crack cocaine. Defendant's sentencing range thus has not been subsequently lowered by those amendments, and he is not eligible for a sentence reduction.
Furthermore, Defendant's sentence of 120 months' imprisonment is the mandatory minimum sentence for his conviction under 21 U.S.C. §§ 821, 841(a)(1), 841(b)(1)(a), and 846 for conspiracy to distribute and possess with intent to distribute crack cocaine and heroin. This mandatory minimum was applicable independently for either his conspiracy to distribute crack cocaine or his conspiracy to distribute heroin. 21 U.S.C. § 841(b)(1)(a). This mandatory minimum sentence is not subject to reduction because to do so would reduce a sentence mandated by statute and would not be "consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); see also Williams, 551 F.3d at 185-6. Defendant's sentence may not be "less than any statutorily required minimum sentence." U.S.S.G. § 5G1.1(c)(2).
The Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010), does not affect Defendant's mandatory minimum sentence. The statute does not alter the penalty thresholds for Defendant's heroin offense, which by itself required a 120 months' imprisonment minimum sentence.
Conclusion
For the foregoing reasons, Defendant's February 5, 2010 and July 17, 2010 Motions for Reduction of Sentence are denied.
It is so ordered.