Opinion
89 Cr. 133 (MEM)
May 31, 2002
OPINION AND ORDER
Juan Baez and Carlos Encarnacion were both convicted on July 17, 1989, after a jury trial, of one count of conspiracy to distribute crack cocaine, in violation of 21 U.S.C. § 846, and two counts of distributing crack within 1,000 feet of a school, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A) and 845a (1988). The two defendants have filed similar motions, pursuant to 18 U.S.C. § 3582 (c) to modify their sentences, claiming that amendments to the U.S. Sentencing Guidelines should result in a downward modification of their sentences. For the reasons set forth below, the motions are denied.
I.
Baez and Encarnacion were sentenced based on the following calculations. The two substantive counts of conviction involved sales of crack totaling 232 grams. Because the sales occurred within 1,000 feet of a school, U.S.S.G. § 2D1.3 (2)(B) required that the weight be doubled for Guidelines purposes, yielding a total of 464 grams. Because the conspiracy count included negotiations to sell an additional kilogram of crack, and U.S.S.G. § 2D1.4 directed that the amount negotiated be considered as if the goal of the conspiracy had been accomplished and a transaction had been consummated, the total weight applied for Guidelines purposes was 1,464 grams. Pursuant to U.S.S.G. § 2D1.1(a)(3), offenses involving more than 500 but less than 1,500 grams had a base offense level of 36. Encarnacion had a criminal history category of II, which yielded a sentencing range of 210-262 months. Baez had a criminal history category of I, but received a two-point enhancement pursuant to U.S.S.G. § 3B1.1 for his leadership role in the conspiracy, which yielded an offense level of 38 and a sentencing range of 235-293 months. Both were sentenced principally to 240 months.
Encarnacion's conviction was affirmed by summary order. United States v. Encarnacion, 930 F.2d 911 (2d Cir. 1991) (table). Baez filed a notice of appeal but failed to perfect the appeal. Thereafter, Baez filed a motion to remit the fine imposed on him, a motion treated as a petition pursuant to 28 U.S.C. § 2255 and denied both procedurally, for failure to exhaust the issue on appeal, and substantively. United States v. Baez, No. 89 Cr. 133, 1994 WL 263508, at *1-2 (S.D.N.Y. June 10, 1994).
II.
Both defendants cite Amendment 518, effective November 1, 1995, which amended U.S.S.G. § 2D1.1, the source for the base offense level for conspiracy to sell drugs. Specifically, it amended Application Note 12 in relation to determining the quantity of drugs involved in a conspiracy offense. The amendment makes determinative the amount agreed upon by the conspirators, "unless the sale is completed and the amount delivered more accurately reflects the scale of the offense." Both defendants would argue that the 1,000 grams computed in connection with the conspiracy count should be eliminated, and only the amount delivered as reflected in the substantive counts should be considered.
Although generally the Guidelines in effect on the date of sentence govern, and a court cannot change a sentence after it has been imposed, Congress authorized the Sentencing Commission to determine which amendments to the Guidelines may apply retroactively to change sentences. See U.S.S.G. § 1B1.11(a); 18 U.S.C. § 3553 (a)(4); 28 U.S.C. § 994 (u). The Commission does so in U.S.S.G. § 1B1.10, which lists the amendments that may be applied retroactively, in connection with a motion like the ones in this case, under 18 U.S.C. § 3582 (c)(2). An amendment not listed in that section may not be applied retroactively. See United States v. Perez, 129 F.3d 255, 258-59 (2d Cir. 1997) (U.S.S.G. § 1B1.10 "governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2)."). Whether or not the amendment is deemed a clarifying amendment, it may not be applied retroactively unless it is listed in U.S.S.G. § 1B1.10. Id. The subject amendment is not listed in that Guidelines section. Therefore, it may not be applied retroactively.
III.
Baez cites Amendment 135 as well, which relates to computing the offense level for drugs distributed within 1,000 feet of a school. That amendment also is not listed in U.S.S.G. § 1B1.10, and therefore cannot be applied retroactively. Perez, 129 F.3d at 258-59.
Moreover, even if it were so applied, it would not help Baez because it would simply have required adding two levels to the base level for the offense without doubling the amount. That base level was 34. In other words, the offense level would be 36 even if the amendment were applied.
Encarnacion cites Amendment 591, effective November 1, 2000, which revised U.S.S.G. § 2D1.2, the section dealing with drug trafficking in a protected location, to direct that the Court apply that Guideline only when the defendant is actually convicted of drug trafficking in a protected location. That amendment is listed in U.S.S.G. § 1B1.10, but in this case both defendants were convicted of drug trafficking within 1,000 feet of a school, so the amendment does not help Encarnacion.
For the above reasons, both motions are denied.