Opinion
89 Cr. 31(JFK).
July 28, 2008
MEMORANDUM OPINION ORDER
INTRODUCTION
Defendant Ramon Caro moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of the recent retroactive amendments to the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") that reduce the base offense levels for offenses involving cocaine base ("crack"). For the reasons that follow, Caro is ineligible for a sentence reduction under the amended Guidelines. Accordingly, his motion is denied.
BACKGROUND
On December 8, 1989, a jury convicted Caro of two counts: (1) participating in a conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of crack and more than 5 kilograms of powder cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846; and (2) maintaining a facility for the distribution of narcotics, in violation of 21 U.S.C. § 856. Caro owned the "All-Star Coffee Shop" in Manhattan, out of which he ran a drug distribution business employing several co-conspirators. Caro used the coffee shop to store and distribute crack and powder cocaine, and he maintained an office inside. From this office, law enforcement agents seized 49.9 grams of cocaine and drug records indicating the sale of 75 kilograms of "cocaine and/or crack." (Presentence Report ¶ 19). The agents also seized other evidence, including a gun and ammunition. In addition, Caro's co-conspirators had sold a total of 248.6 grams of crack to an undercover agent.
The Probation Office prepared a presentence report ("PSR") attributing 99.9 kilograms of powder cocaine to Caro, which corresponded to a base offense level of 36 under the Guidelines. The PSR computed the 99.9 kilograms of powder cocaine by (1) assuming that the drug records reflecting 75 kilograms of "cocaine and/or crack" consisted of only powder cocaine; (2) adding the 49.9 grams of cocaine found in the coffee shop office; and (3) converting the 248.6 grams of crack that had been sold to an undercover agent to a powder cocaine equivalent of 24.86 kilograms, using a 100:1 powder/crack ratio.
The PSR then recommended adjusting Caro's base offense level to 42, adding two points for possession of a firearm during the commission of the offense and four points for being a leader or organizer of the operation. The PSR deferred to the Court regarding the imposition of a two-point enhancement for obstruction of justice for lying under oath at trial and attempting to disguise his handwriting and mislead law enforcement officials about the presence of his handwriting in drug records seized.
On June 5, 1990, the Court sentenced Caro to 35 years' imprisonment on the drug conspiracy charge, Count One. The Court did not make a finding as to the exact quantity of drugs. Instead, it relied on the PSR's calculation of 99.9 kilograms of powder cocaine in determining that "the amount of cocaine involved was between 50 and 150 kilograms mandating a level 36." (Sent. Tr. at 15). The Court adjusted Caro's offense level to 42, adding three two-point enhancements for possession of a firearm, obstruction of justice, and acting as a supervisor or manager. Combined with a Criminal History Category of I, this yielded a Guideline range of 30 years to life.
Caro also was sentenced to a concurrent term of 20 years' imprisonment on Count Two.
The Court did not mention that part of this amount was comprised of crack which had been converted to its powder cocaine equivalent, but did recognize that "You [Caro] were selling crack at an alarming level out of the All Star Coffee Shop." (Sent. Tr. at 17.)
Caro appealed the judgment of conviction and sentence on multiple grounds. On December 12, 1990, the Second Circuit affirmed the judgment in its entirety. See United States v. Caro, 923 F.2d 845 (2d Cir. 1990) (unpublished mandate). Caro is expected to finish serving his sentence in September 2019.
DISCUSSION
The commentary to U.S.S.G. § 2D1.1 recently was amended to provide a two-level reduction of base offense levels in cases involving crack and one or more other controlled substance(s).See Supp. to 2007 Guidelines Manual, § 2D1.1, App. Note 10(D) (eff. May 1, 2008). This amendment took retroactive effect on May 1, 2008. See Supp. to 2007 Guidelines Manual, § 1B1.10(c) (eff. May 1, 2008). Not every defendant serving a sentence for an offense involving crack and another drug is eligible for a reduced sentence. A court has authority to grant a sentence reduction only if retroactive application of the amendment would result in a lower applicable guideline range. See U.S.S.G. § 1B1.10(a)(2); 18 U.S.C. § 3582(c)(2). The amended guideline range is calculated by substituting the amended provisions of § 2D1.1 and "leav[ing] all other guideline application decisions unaffected." See U.S.S.G. § 1B1.10(b)(1).In this case, the defendant was sentenced for a narcotics conspiracy involving 248.6 grams of crack and more than 75 kilograms of powder cocaine. Under the amended commentary to U.S.S.G. § 2D1.1, the new combined base offense level is calculated by converting each drug into its marihuana equivalent pursuant to the Drug Equivalency Tables, adding these equivalents and determining the combined offense level under § 2D1.1(c)'s Drug Quantity Table, and reducing the combined offense level by two levels. See Supp. to 2007 Guidelines Manual, § 2D1.1, App. Note 10(D) (eff. May 1, 2008). However, the amended commentary also provides exceptions to the two-level reduction. The two-level reduction does not apply in a case in which: (1) the offense involved 4.5 kilograms or more, or less than 250 milligrams, of crack; or (2) the two-level reduction results in a combined offense level that is less than the combined offense level that would apply if the offense involved only the controlled substance(s) other than crack. Id.
Caro falls within the latter exception, so he is not eligible for a two-level reduction. Under the Drug Equivalency Tables, 1 gram of cocaine equals 200 grams of marihuana. U.S.S.G. § 2D1.1, App. Note 10(E). The more than 75 kilograms of powder cocaine for which Caro was responsible is the equivalent of roughly 15,010 kilograms of marihuana. One gram of crack is equal to 20 kilograms of marihuana. Supp. to 2007 Guidelines Manual, § 2D1.1, App. Note 10(E) (eff. May 1, 2008). The 248.6 grams of crack for which Caro was responsible is equivalent to 4972 kilograms of marihuana. The total marihuana equivalent is about 19,982 kilograms, which corresponds to a combined offense level of 36.See U.S.S.G. § 2D1.1(c)(2) (applying to offenses involving "[a]t least 10,000 KG but less than 30,000 KG of Marihuana"). Under the amended commentary, this normally would be reduced by two levels to a combined offense level of 34. The second exception applies, however, because the marihuana equivalent of the powder cocaine alone (approx. 15,010 kilograms) corresponds to a base offense level of 36, and applying the two-level reduction would result in a combined offense level that is less than the combined offense level that would apply if the offense involved only the powder cocaine. Therefore, Caro is ineligible for a two-level reduction pursuant to the amended U.S.S.G. § 2D1.1, App. Note 10(D) (eff. May 1, 2008).
Caro's guideline range does not change as a result of applying the retroactive crack amendment, and, consequently, the Court lacks authority to grant him a sentence reduction under 18 U.S.C. § 3582(c)(2). The motion is DENIED. The Clerk of the Court is respectfully directed to close the motion (Dckt. No. 76) and all related motions (Dckt. Nos. 77, 79, 82 and 85).