Opinion
Criminal No. 06-40007-FDS
01-12-2012
UNITED STATES OF AMERICA v. CARMELO FIGUEROA, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S [SECOND] MOTION TO MODIFY
HIS SENTENCE UNDER 18 U.S.C. § 3582(c)
SAYLOR, J.
Defendant Carmelo Figueroa pleaded guilty in August 2006 to various drug charges and was sentenced to a term of imprisonment based principally on the career-offender sentencing guideline. On June 27, 2008, Figueroa filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on then-recent revisions to the crack-cocaine sentencing guidelines. The Court denied that motion on July 21, 2009, noting that because the sentence was based on the career offender guidelines, ". . . [the crack-cocaine] guideline did not affect the sentence in the first instance, the modification of the [crack-cocaine] guideline likewise would have no effect." On July 12, 2010, the First Circuit affirmed this Court's denial of defendant's motion to modify his sentence.
On November 1, 2011, defendant filed a second motion to reduce his sentence in light of recent amendments to the sentencing guidelines adopted to effectuate the Fair Sentencing Act of 2010 ("FSA"), Pub.L. No. 111-220, 124 Stat. 2372. As explained below, the retroactive amended sentencing guidelines for crack-cocaine offenses do not apply to individuals whose sentences are based on the career-offender guideline. Defendant's motion will therefore be denied.
I. Background
On August 4, 2006, defendant pleaded guilty to a three-count indictment charging him with conspiracy to distribute, and to possess with intent to distribute, cocaine base, in violation of 21 U.S.C. § 846; distribution of cocaine base and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). On May 1, 2007, this Court conducted a sentencing hearing. It found that defendant was a career offender within the meaning of § 4B1.1 of the U.S.S.G. and subject to a guideline sentencing range of 262 to 327 months. The Court imposed a non-guideline sentence of 228 months based on the fact he had only two qualifying convictions, one of which was continued without a finding, and that he was relatively less culpable than most persons in the "career offender" category. That sentence represented a substantial departure from the guideline range of 34 months, or nearly three years.
The crack cocaine guidelines, had they been applied, would have resulted in an offense level of 31 based on drug quantity, but the career-offender guideline raised the offense level to 34.
Defendant now again moves to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that his sentence should be reduced in accordance with the retroactive amended sentencing guidelines for crack cocaine.
II. Analysis
Defendant is ineligible for a reduction of his sentence because his sentencing range was based on U.S.S.G. § 4B.1 (the career-offender guideline), not section U.S.S.G. § 2D1.1 (the crack-cocaine guideline). The Court may modify a sentence for a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . ." 18 U.S.C. § 3582(c). The Sentencing Commission has lowered the sentencing range set forth in the crack-cocaine guidelines, not the career-offender guideline, and this Court relied solely on the career-offender guideline in determining defendant's sentence. "A sentencing court has no authority to entertain a sentence reduction motion under § 3582(c)(2) when the guideline amendment in question does not affect the guideline sentencing range actually used by the sentencing court." United States v. Caraballo, 552 F.3d 6, 11, (1st Cir. 2008); see also United States v. Hickey, 280 F.3d 65 (1st Cir. 2002).
As the Court noted in its July 21, 2009 ruling on defendant's first motion to modify his sentence, "nothing about the crack cocaine guideline drove the sentence to a higher level, dissuaded the Court from imposing a lesser sentence, or otherwise affected the ultimate decision."
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Furthermore, defendants sentenced under the career-offender guideline are ineligible for sentence reductions resulting from the amended crack-cocaine guidelines. "If a defendant not designated a career offender was sentenced under the crack cocaine guidelines before the guideline reduction, he may seek resentencing; if sentenced as a career offender for the same offense, he may not as his sentence was not based on the crack cocaine guidelines." See United States v. Cardosa, 606 F.3d 16, 19 (1st Cir. 2010); see also Caraballo, 552 F.3d at 11; United States v. Ayala-Pizarro, 551 F.3d 84, 85 (1st Cir. 2008).
III. Conclusion
For the foregoing reasons, defendant's motion to reduce his sentence is DENIED. So Ordered.
______________________
F. Dennis Saylor IV
United States District Judge