Opinion
Criminal Nos 93-CR-395, 93-CR-174.
January 11, 2002
STEPHEN F. CASANOVA, Reg. #01401-052, Petitioner Pro Se, Ray Brook, New York.
GRANT C. JAQUITH, AUSA, HON. JOSEPH A. PAVONE, United States Attorney for the Northern District of New York, Syracuse, New York, Attorney for Respondent.
MEMORANDUM DECISION AND ORDER
Defendant brings a motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). On November 12, 1993, defendant pled guilty to a one-count information charging him with manufacturing marijuana by growing more than 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1). On April 24, 1994, he received the statutory minimum sentence based on the number of marijuana plants involved, and his prior felony drug conviction. Subsequently, an amendment to § 2D1.1(c) of the United States Sentencing Guidelines ("U.S.S.G.") revised the marijuana plant/weight equivalencies. If the modifications were applicable to defendant, they would result in a lower sentencing range, see U.S.S.G. Manual App., Amend. 516 (Nov. 1995), and defendant would be entitled to a reduction under § 3582(c)(2). However, defendant was not sentenced pursuant to the guidelines. Instead, he was sentenced to a mandatory statutory minimum which must be imposed when a defendant is convicted of possession of "100 or more marijuana plants regardless of their weight." 21 U.S.C. § 841(b)(1)(B)(vii). The Sentencing Commission's later amendment of the guideline plant/weight equivalences did not amend the statute requiring the mandatory minimum sentence for possession of 100 or more marijuana plants. United States v. Novey, 78 F.3d 1483, 1486 (10th Cir. 1996) ("[T]he Sentencing Commission does not have the authority to override or amend a statute."), (citing Neal v. United States, 516 U.S. 284, 288, 293, 116 S.Ct. 763, 766, 768, 138 L. ED.2d 709 (1996)), cert denied, 520 U.S. 520 U.S. 1251, 117 S.Ct. 2407, 138 L.Ed.2d 174 (1997). Consequently, defendant is ineligible for a reduction of sentence under § 3582(c)(2). United States v. Mullanix, 99 F.3d 323, 324 (9th Cir.) (defendant not entitled to a reduction of sentence under Amendment 516 because original sentence was for the statutory minimum term.) cert denied., 520 U.S. 1180, 117 S.Ct. 1457, 137 L.Ed.2d 561 (1997): United States v. Marshall, 95 F.3d 700, 701 (8th Cir. 1996) (per curiam) (where defendant possessed over 100 marijuana plants, amendment could not lower defendant's sentence below the statutory minimum). Additionally, even if the modification was applicable to defendant's situation, the court has the discretion to decline to modify a defendant's sentence. United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997).
Furthermore, 18 U.S.C. § 3553(f), the so called "safety valve" provision, that permits a district court to impose a sentence below the statutory minimum in certain circumstances, does not provide an independent basis for reducing defendant's sentence. Defendant's sentence was imposed on April 24, 1994, § 3553(f) became effective on September 23, 1994, and it does not apply retroactively to sentences imposed before its effective date. EUnited States v. Rodriguez-Lopez, 63 F.3d 892, 893 (9th Cir. 1995).
Accordingly, defendant's motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2) is DENIED.
IT IS SO ORDERED
Therefore, defendant was not sentenced pursuant to a sentencing range which had been subsequently lowered; he was sentenced pursuant to the statutory required minimum, which was not affected by the change in the marijuana equivalency tables. Consequently, this court has no authority to reduce defendant's sentence under § 3582(c)(2). United States v. Mullanix, 99f.3d 323, 324 (9th Cir.), cert. denied, 520 U.S. 1180, 117 S.Ct. 1457, 137 L.Ed.2d 561 (1997). U.S.S.G. Manual App. C, Amend. 516 (Nov. 1995).