Opinion
98 Cr. 834 (JFK).
June 16, 2009
MEMORANDUM OPINION ORDER
Defendant Paul Williams ("Williams"), proceeding pro se, moves for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), in light of the recent retroactive amendments to the U.S. Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") that generally reduce the base offense levels for cocaine base ("crack") offenses. For the reasons set forth below, Williams is ineligible for a reduction in sentence under the amended Guidelines, and his motion is denied.
I. BACKGROUND
On May 1, 2000, a jury convicted Williams of (1) participating in a conspiracy to distribute and to possess with intent to distribute 50 grams or more of crack and five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) ("Count 1"); and (2) distribution and possession with intent to distribute 50 grams and more of crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) and 18 U.S.C. § 2 ("Count 3").
At the sentencing hearing on January 11, 2001, this Court found that the drug conspiracy in which Williams participated sold approximately 16 kilograms of crack and 304 kilograms of cocaine. This amount of crack, above 1.5 kilograms, resulted in a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (2000) (amended 2007). The amount of cocaine involved, above 150 kilograms, resulted in a base offense level of 38. See id. A three-point enhancement was imposed for the defendant's role as a manager or supervisor of criminal activity. See U.S.S.G. § 3B1.1(b). The adjusted offense level of 41 and Williams's criminal history category of I yielded an applicable Guidelines sentencing range of 324 to 405 months in prison. On each of Counts 1 and 3, the Court sentenced Williams to 324 months, with the sentences to run concurrently. On July 11, 2001, the U.S. Court of Appeals for the Second Circuit affirmed the judgment. United States v. Pinales, 14 Fed. Appx. 100 (2d Cir. 2001). Defendant filed the instant motion on March 3, 2009. His expected release date is July 14, 2022.
II. DISCUSSION
The retroactive crack amendment reduces by two points the base offense levels corresponding to the crack quantity ranges in U.S.S.G. § 2D1.1(c)'s Drug Quantity Table. See U.S.S.G. app. C, amend. 706, as amended by amend. 711 (eff. Nov. 1, 2007); id. § 1B1.10. The amended Guidelines range is calculated by substituting the amended provisions of § 2D1.1(c) and "leav[ing] all other guideline application decisions unaffected." U.S.S.G. § 1B1.10(b)(1). A sentence reduction is authorized only if retroactive application of the amendment would result in a lower applicable Guidelines range. See U.S.S.G. § 1B1.10(a); 18 U.S.C. § 3582(c)(2).
Williams is not eligible for a reduction under the amendment because this Court found that the drug conspiracy in which Williams participated sold approximately 16 kilograms of crack, well above the 4.5 kilograms minimum currently required for a base level of 38 under the amended Guidelines. See U.S.S.G. § 2D1.1(c)(1). Additionally, this Court found that the conspiracy in which Williams participated sold approximately 304 kilograms of cocaine, carrying a base offense level of 38. The applicable Guideline range for the quantity of cocaine is unaffected by the retroactive crack amendment, and a sentence reduction is unauthorized. Because all other Guidelines application decisions remain the same, the three-point enhancement imposed for the defendant's role as manager and supervisor of the criminal activity continues to apply, and the adjusted offense level remains 41. According to the Guidelines sentencing table in effect on the date of Williams's sentencing, the applicable Guidelines range for an offense level of 41 and a criminal history category of I is 324 to 405 months imprisonment. Since Williams's base offense level and sentence remain the same, he is not eligible for a sentence reduction. See U.S.S.G. § 1B1.10(a).
Williams argues that U.S.S.G. § 1B1.10 should be treated as advisory in light of the Supreme Court decisions in United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2007). This Court, however, follows all courts in this circuit ruling on this issue, and holds that the U.S.S.G. § 1B1.10 policy statement of the Guidelines is binding under 18 U.S.C. § 3582(c)(2). See United States v. Diggins, No. 03 CR 801, 2008 U.S. Dist. LEXIS 65616, at *5-6 (S.D.N.Y. Aug. 27, 2008) (collecting cases and holding that Booker and its progeny "do not render the Sentencing Commission's policy statements advisory under 18 U.S.C. § 3582(c)(2)").
In addition, Williams presents two collateral issues which the Court addresses briefly. First, Williams argues that the Court failed to instruct the jury on the purity and quantity of the drugs at issue. Such an argument must be brought on direct appeal or under 28 U.S.C. § 2255. See, e.g., Smith v. United States, Nos. 02 CR 104, 05 CV 1848, 2008 U.S. Dist. LEXIS 36511, at *15 (S.D.N.Y. 2008) (noting that a defendant's failure to raise his claim regarding the inadequacy of jury instructions on direct review bars the claim unless the defendant can show, in a 28 U.S.C. § 2255 motion, cause for and actual prejudice from the failure to have asserted the claim earlier (citing United States v. Frady, 456 U.S. 152, 167-68 (1982))). Williams did not raise this argument on appeal, see United States v. Pinales, 14 Fed. App'x 100, 101 (2d Cir. 2001), and the Court declines to recharacterize part of the instant motion, which is brought under 18 U.S.C. § 3582(c)(2), as a § 2255 collateral attack in light of Castro v. United States, 540 U.S. 375 (2003) ("[T]he court cannot so recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's `second or successive' restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing."). The Court notes, however, that the habeas corpus statute carries a one-year period of limitation from the latest of certain dates, all of which were more than one year before Williams's motion to modify his prison term. See 28 U.S.C. § 2255(f).
Second, Williams asks the Court to consider his approximately two years' good time credit under 18 U.S.C. § 3624(b) in resentencing him. Good time credit is for the Bureau of Prisons ("BOP") and not district courts to decide. See United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997) ("After a defendant is sentenced, it falls to BOP, not the district judge, to determine . . . whether the defendant should be awarded credit for `good time.'" (citing 18 U.S.C. § 3624(b))).
CONCLUSION
Because Williams's applicable Guidelines range remains the same under the amended Guidelines, the Court lacks authority to grant a reduction of sentence under 18 U.S.C. § 3582(c)(2). The motion for a reduction of sentence is denied.