Opinion
90 Cr. 114 (MGC)
February 15, 2002
FRANK CABRERA, Petitioner pro se No. 07510-054 P.O. Box 2000-5702 Fort Dix, N Y 08640
JAMES B. COMEY United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007
By: Alexander H. Southwell, Esq. Assistant United States Attorney
MEMORANDUM OPINION AND ORDER
Petitioner Frank Cabrera has moved pursuant to is U.S.C. § 3582(c) for modification of his sentence on the ground that Amendments 518 and 447 to the Sentencing Guidelines apply retroactively to his sentence. Because neither of these amendments alters the calculation of his sentence, petitioner's motion is denied.
BACKGROUND
On February 12, 1990, petitioner met with a DEA informant posing as a drug dealer to discuss the price and quantity of drugs that the dealer would sell to petitioner's friend, Bernardo Garcia. On February 15, 1990, when the dealer called him at his place of business, petitioner said that he wanted six kilograms of cocaine, and that the deal had to be done at his place of business so he could be sure to get his share as the "broker" of the deal. The dealer then called Garcia who confirmed that the deal was for six kilograms of cocaine. That afternoon, the dealer and another DEA informant met with petitioner and Garcia at petitioner's place of business to consummate the drug transaction. Garcia said that he had brought money to purchase four kilograms of cocaine at $21,000 per kilogram, and that he would buy the remaining two kilograms a short time thereafter. Cabrera complained that he did not know that the price had been lowered from $23,000 to $21,000 per kilogram, and questioned how he was going to get his share for acting as the "broker." When the DEA informants gave a pre-arranged signal to waiting DEA agents, they arrested Garcia and Cabrera.
Petitioner was convicted of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. The quantity was explicitly found by the jury. On January 25, 1991, he was sentenced to a term of 188 months in prison followed by five years of supervised release, and was fined $1000. On June 25, 1991, the Second Circuit affirmed Cabrera's conviction.
Petitioner then moved pursuant to 28 U.S.C. § 2255 to vacate his conviction on the grounds that (1) the government had failed to provide impeachment material to which he was entitled; (2) the government knowingly presented perjured testimony at trial; and (3) the jury was wrongly instructed on the special interrogatories on the quantity of drugs. In the alternative, petitioner moved pursuant to Fed.R.Crim.P. 33 for a new trial on the basis of newly discovered evidence. On August 11, 1995, both of these motions were denied. Petitioner also moved pursuant to Fed.R.Civ.P. 60(b) for relief from the August 11, 1995 order. That motion was denied on December 12, 1995. On October 15, 1996, the Second Circuit affirmed the denial of Cabrera's post-conviction applications for relief.
DISCUSSION
Petitioner now argues that Amendments 518 and 447 to the Sentencing Guidelines, both of which became effective after he was sentenced, should be retroactively applied to reduce his sentence. The general rule as set forth in 18 U.S.C. § 3582(c) is that "[t]he court may not modify a term of imprisonment once it has been imposed." Section 3582 makes an exception to this rule "in the case of a defendant who has been sentenced based on a sentencing range that has subsequently been lowered by the Sentencing Commission. . . ." 18 U.S.C. § 3582(c). In such a case, "the court may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id.
The Sentencing Commission has issued a policy statement entitled "Reduction in Term of Imprisonment as a Result of Amended Guideline Range" in Section 131.10 of the Sentencing Guidelines. Section 131.10 states that:
(a) Where a defendant is serving a term of imprisionment, 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, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized.
. . .
(c) Amendments covered by this policy statement are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, and 606.
U.S.S.G. § 131.10 (2001). The commentary to § 131.10 adds that "[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range." Id., cmt. n. 1.
Accordingly, amendments which are not specifically listed in U.S.S.G. § 131.10(c) generally do not constitute grounds for modification of sentence. United States v. Fabian, 1996 WL 280804 (S.D.N.Y. 1996) (denying motion for modification of sentence on the ground that amendment invoked was not specifically listed in U.S.S.G § 131.10(c)); United States v. Betancur-Estrada, 1996 WL 87243 (S.D.N.Y 1996); United States v. Disomma, 1996 WL 517662 (S.D.N.Y. 1996)
Amendments 447 and 518 are not specifically listed in U.S.S.G. § 131.10(c). Petitioner argues that nevertheless these amendments are retroactively applicable because they are clarifying amendments. The Second Circuit has held that:
[a] defendant sentenced under one version of the Guidelines may . . . be given the benefit of a later revision if the revision represents not a substantive change but merely a clarification of the Sentencing Commission's prior intent. . . . Frequently, when the language of a guideline or its commentary is altered, the Commission states its intent in making the change. In such an instance, the Commission's characterization of the alteration as a clarification, rather than a change in substance, is accorded considerable deference.United States v. Kim, 193 F.3d 567, 578 (2d Cir. 1999); United States v. Sabbeth, No. 00-1586, slip. op. at 404-05 (2d Cir. Jan. 11, 2002). InKim, where the amendment at issue was not accompanied by a statement that the Commission intended the change as a clarification, the court examined the text of the changes made by the amendment to determine whether it effected a "substantial change of scope." Kim, 193 F.3d at 578.
Amendment 518
Prior to November 1, 1995, Application Note 12 to § 2D1.1 of the Sentencing Guidelines provided that:
[i]n an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.
U.S.S.G. § 2D1.1, cmt. n. 12 (1992) (formerly § 2D1.4, cmt. n. 1). Amendment 518 deleted the above language, and inserted the following text in lieu thereof:
In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. For example, a defendant agrees to sell 500 grams of cocaine, the transaction is completed by the delivery of the controlled substance — actually 480 grams of cocaine, and no further delivery is scheduled. In this example, the amount delivered more accurately reflects the scale of the offense. In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not by the defendant. If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.
U.S.S.G. § 2D1.l, cmt. n. 12 (2001). The Sentencing Commission also stated that this part of Amendment 518 "revises the Commentary to § 2D1.1 to provide that in a case involving negotiation for a quantity of a controlled substance, the negotiated quantity is used to determine the offense level unless the completed transaction establishes a different quantity." U.S.S.G. Manual app. C at 344 (1997).
Prior to this amendment, the Sentencing Guidelines provided that the "weight under negotiation" should be used to determine sentencing in an uncompleted distribution. Amendment 518 now provides that the "agreed-upon quantity" should be used to determine sentencing unless the sale is completed and the amount delivered more accurately reflects the scale of the offense, and demonstrates this rule by means of an example. It also reiterates the provision in the original text that the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing. The nature of the changes made by this part of Amendment 518 and the Sentencing Commission's statement regarding its content shows that this amendment clarifies the Commission's intent.
Even though Amendment 518 is a clarifying amendment that may be retroactively applicable, it does not constitute a ground for reducing petitioner's sentence. Petitioner contends that this amendment clarifies the role of a defendant's intent and/or capacity to produce the controlled substance in determining his sentence, and that he did not have the requisite intent and/or capacity to be sentenced as he was. He argues that: (i) the court should have considered whether the drug negotiations were "sufficiently specific" regarding price, quantity and delivery "to constitute a plan rather than exploratory discussion"; (ii) the court should have considered whether "the coconspirator took any action such as making arrangements for delivery to produce the controlled substance"; (iii) six kilograms of cocaine should not have been attributed to him because Garcia and his wife brought only $84,000 to the meeting with the dealer — this sum of money was sufficient to pay for only four kilograms of cocaine at the negotiated price of $21,000; and (iv) the evidence did not support a finding that he "negotiated or agreed with [the DEA informant posing as a dealer]."
Petitioner's arguments lack merit. Petitioner's central role in the conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine was established beyond reasonable doubt at the trial. The jury found the quantity of drugs. There was evidence at trial that Cabrera told the purported drug dealer that he and Garcia would buy six kilograms of cocaine and that the deal had to be done at his place of business so he could be sure to get his share as the "broker" of the deal. That Garcia came prepared to pay for only four kilograms of cocaine does not make the clarifying amendment applicable, since he had agreed to purchase six kilograms, and intended to purchase the two remaining kilograms later. The same issues were raised at trial and at Cabrera's sentencing. The retroactive application of Amendment 518 to petitioner's case does not alter his sentence.
Amendment 447
Amendment 447, effective November 1, 1992, deleted the following text in Application Note 12 of § 2D1.1:
If the amount seized does not reflect the scale of the offense, see Application Note 2 of the Commentary to § 2D1.4. If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2 D1.4.
U.S.S.G. § 2D1.1, cmt. n. 12 (1992). In lieu thereof, the amendment incorporated the content of "Application Note 2 of the Commentary on Section 2D1.4" into the Commentary on Section 2D1.1:
Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the court may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.
U.S.S.G. § 2D1.1, cmt. n. 12 (2001).
In United States v. Hendrickson, 26 F.3d 321, 330 n.E (2d Cir. 1994), the Second Circuit held that it could consider Amendment 447 in assessing whether a defendant's sentence should be vacated because the district court erred in finding that he intended to import 50-60 kilograms of heroin. The court reiterated the Sentencing Commission's own description of Amendment 447 as an amendment which "clarifies and simplifies the guideline provisions dealing with attempts and conspiracies in drug cases," U.S.S.G. Manual app. C at 344 (1997), in rejecting the Government's argument that Amendment 447 could not be considered.
Even though Amendment 447 is a clarifying amendment, its application does not reduce petitioner's sentence. Petitioner's basis for invoking Amendment 447 as a ground for relief is unclear. He appears to contend that it was error to attribute the total bargained for drug amount to him. He argues that a defendant may not be sentenced for a drug quantity that his coconspirators agreed to produce if he could not reasonably have foreseen that quantity.
As noted above, petitioner played a central role in arranging for the purchase of the cocaine. He agreed with the drug dealer that six kilograms of cocaine would be delivered at his place of business so that he could be assured of his share in the deal. Accordingly, the "agreed-upon quantity" of cocaine in this reverse-sting operation was six kilograms, and there was no error in basing petitioner's sentence on a quantity of cocaine as found by the jury.
Extraordinary and Compelling Circumstances
Finally, pursuant to 18 U.S.C. § 3582, petitioner's "extraordinary and compelling" circumstances may be considered as grounds for sentence reduction only upon motion of the Director of the Bureau of Prisons. No such motion has been made in this case.
CONCLUSION
For the foregoing reasons, petitioner's motion for modification of his sentence is denied.
SO ORDERED.