Opinion
Case No. 05-21400-CIV-LENARD, (99-588-CR-LENARD).
August 31, 2005
REPORT OF MAGISTRATE JUDGE
This Cause is before the Court on movant's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) which was referred to the undersigned for report and recommendation.
The movant seeks retroactive application of Amendment 640, the November 1, 2002 amendment to USSG § 3B1.1 and § 2D1.1(a)(3) which provides in pertinent part," if a defendant receives an adjustment under USSG § 3B1.2 for a mitigating role, the base offense level shall not be greater than level 30.
Lugo was awarded a minor role reduction, but because his sentencing took place in April of 2000, more than two years prior to the enactment of the Amendment, his offense level was not limited to level 30, and he was sentenced based on a base offense level of 32.
In order for a sentencing guidelines amendment to be given retroactive effect, such amendment must be listed in USSG § 1B1.10. United States v. Armstrong, 347 F.3d 905 (11 Cir. 2003). Amendment 640 is not contained in § 1B1.10, and courts to have considered the question have held that it is not retroactive. See, e.g, United States v. Cabrera-Polo, 376 F.3d 29, 31 (1 Cir. 2004); United States v. Turner; 128 Fed.Appx. 941, 2005 WL 995512 (3 Cir. 2005); United States v. Espericueta, 97 Fed.Appx. 503, 2004 WL 1161827, (5 Cir. 2004).
Accordingly, it is therefore recommended that the motion for reduction of sentence be denied.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.