Opinion
88 CR 859 (JFK).
November 21, 2008
Memorandum Opinion Order
On September 19, 1989, Roberto Figueroa ("Defendant" or "Figueroa") was convicted after a trial on a narcotics conspiracy and two substantive narcotics counts, in violation of 21 U.S.C. §§ 843 (Count One), 841(b)(1)(A) (Count Two), and 841(b)(1)(B) (Count Three). He received concurrent sentences of twenty-four years on each count. His projected release date is February 2, 2010.
Defendant now moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 709 to the United States Sentencing Guidelines (the "Guidelines" or " U.S.S.G."). He argues that Amendment 709 should be applied retroactively and warrants a reduction of his sentence. For the reasons stated below, the motion is DENIED.
Discussion
Amendment 709 took effect on November 1, 2007 and substantively changed the way that multiple prior sentences are counted in computing a defendant's criminal history under the Guidelines. See U.S.S.G. § 4A1.2(a)(2) (eff. Nov. 1, 2007). Figueroa is not entitled to a sentence reduction under Amendment 709, however, because it does not apply retroactively. Title 18, United States Code section 3582(c)(2) provides that a district court may reduce a defendant's sentence by retroactively applying a Guidelines amendment only if "such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Under the applicable Sentencing Commission policy statement, a sentence reduction pursuant to § 3582(c)(2) is authorized only if the amendment is listed in U.S.S.G. § 1B1.10(c). See U.S.S.G. § 1B1.10(a); U.S.S.G. § 1B1.10(c). Amendment 709 is not listed in U.S.S.G. § 1B1.10(c). Therefore, the Court lacks authority to apply the amendment retroactively to reduce Figueroa's sentence. See e.g.,United States v. Wainwright, No. 00 Cr. 105, 2008 WL 3539506, at *2 (S.D.N.Y. Aug. 12, 208) ("Amendment 709, unlike Amendment 706, has not been made retroactive."); Perez-Gallegos v. United States, Nos. 08 Civ. 1197, 04 Cr. 1274, 2008 WL 3247260, at *5 (S.D.N.Y. Aug. 7, 2008); United States v. Schmidt, No. 92 Cr. 609, 2008 WL 2856473, at *1 (S.D.N.Y. July 22, 2008).
Defendant argues that the Court may apply Amendment 709 retroactively in light of United States v. Booker, 543 U.S. 220 (2005). However, "`[n]othing in [Booker] purported to obviate the congressional directive' that a sentence reduction must be consistent with the Sentencing Commission's policy statements." Schmidt, 2008 WL 2856473, at *1 (quoting United States v. Wise, 515 F.3d 207 n. 11 (3d Cir. 2008)). Therefore,Booker does not provide grounds for a sentence reduction pursuant to Amendment 709. Id.
Accordingly, Defendant's motion for a reduction of his sentence is denied.