Opinion
Crim. No. 95-029-11 (JAF).
November 9, 2010
OPINION AND ORDER
Defendant, Raúl Ortiz-Miranda, previously moved for a reduction of his sentence pursuant to the amended sentencing guidelines for cocaine base ("crack"). (Docket No. 3361.) We denied this motion, stating that the quantity of the other narcotics in this conspiracy was enough to justify Defendant's original base offense level. (Docket No. 3366.) The First Circuit vacated our order and remanded for further consideration. United States v. Ortiz-Miranda, No. 09-1327 (1st Cir. Jan. 6, 2010). Defendant moves for the preparation of a new presentencing report ("PSR") and for leave to be present in court for any potential resentencing. (Docket Nos. 3429; 3433; 3438.) For the reasons stated below, we deny Defendant's motions.
In November 2007, the U.S. Sentencing Commission (U.S.S.C.) sought to lessen the disparity between the treatment of cocaine powder and crack offenses by dropping the base offense level for possession of crack by two levels for any amount less than 4.5 kg. See U.S. Sentencing Guidelines Manual supp. app. C, amends. 706, 707, 715 (2009).
Congress has provided that, where the U.S.S.C. lowers a sentencing range pursuant to 28 U.S.C. § 994(o), a defendant previously sentenced to imprisonment under that range may move the court for a reduction in his term of imprisonment. 18 U.S.C. § 3582(c)(2). This reduction is not as of right and may be granted only after the court considers both the policy statements of the U.S.S.C. and the sentencing factors of 18 U.S.C. § 3553(a). Id. The U.S.S.C. policy statement on sentencing reductions states that a reduction cannot be granted if applying the amended guideline would not have the effect of lowering the defendant's guideline range. U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B) (2009). The commentary to the Guidelines Manual also counsels that public safety and post-sentencing conduct should be considered. Id. § 1B1.10 cmt. n. 1(B). The following sentencing factors are among those outlined in 18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.18 U.S.C. § 3553(a).
We deem it convenient to outline the procedures devised nationwide by courts to deal with the multitude of retroactive crack sentence reductions that the amendments to the Guidelines generated — the majority of which were expected to have little or no merit. The undersigned, as a member of the U.S. Judicial Conference Committee on Criminal Law and in a joint effort with the U.S.S.C., issued an Administrative Directive on February 15, 2008, detailing the streamlined procedure to be followed in determining the applicability and extent of a reduction. See In re: Petitions for Retroactive Appl. of the Nov. 1, 2007 Amend. to the Crack Cocaine Offense Level Guidelines, No. 08-31 (D.P.R. Feb. 15, 2008), attached as App. 1. In the interest of expedience, the Directive also stated that the disposition of sentencing reductions would be entered on AO Form 247, a simple fill-in-the-blanks Order Regarding Motion for Sentence Reduction, as prepared by the Judicial Conference Committee on Criminal Law.Id.; see also Memorandum from the Hon. Julie E. Carnes, Chair of the Judicial Conference Comm. on Criminal Law (Feb. 20, 2008),available at http://www.ussc.gov/training/DIR8-025.pdf.
I. Factual and Procedural Summary
A comprehensive and detailed factual background appears in an opinion of even date in U.S. v. Moisés Candelaria-Silva, (Cr. 95-029-16, Docket No. 3454). Defendant Ortiz-Miranda was convicted on December 13, 1995, for conspiracy to possess with intent to distribute fifty grams ("g") or more of crack, five kilograms ("kg") or more of cocaine, one kg or more of heroin, and an undetermined quantity of marijuana. He was also convicted of using and carrying a firearm during and in relation to the drug-trafficking conspiracy, in violation of 18 U.S.C. § 924(c)(1). This second charge was dismissed prior to sentencing as a result of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). At sentencing, we found that Defendant had been responsible for conspiring to possess and distribute at least 1.5 kg of crack. (Docket No. 1214.) On the basis of this quantity of crack and quantities of additional narcotics enumerated in the drug-trafficking charge for which Defendant was convicted, we calculated his base offense level at thirty-eight. (Id.) We applied a two-level enhancement due to his use of a firearm, bringing the total offense level to forty. (Id.) Defendant's criminal history category of IV placed his guideline range from 360 months to life. Due to Defendant's criminal history including homicide, and use of assault rifles, we sentenced him to 540 months' imprisonment.
In January 2009, Defendant moved for a sentence reduction under § 3582(c)(2), arguing that his sentence was based on the former guideline for crack. (Docket No. 3361.) The U.S. Probation and Pretrial Services Office ("Probation Office") recommended we deny this motion because Defendant had been held responsible for 30 kg of heroin, which was enough to trigger a base offense level of thirty-eight, regardless of a reduction for crack. (Docket No. 3365 at 2.) We adopted this recommendation and denied Defendant's motion. (Docket No. 3366.) On appeal, the Government conceded that the Probation Office's recommendation had been in error and that no specific quantity of heroin was attributed to Defendant at sentencing. (Docket No. 3482-3.) The First Circuit remanded the case for reconsideration. (Docket No. 3430.)
One of the Government's chief witnesses, a former coconspirator, testified at trial that Defendant delivered cocaine to the Enrique Catoni housing project in Vega Baja, Puerto Rico, for the Israel Santiago-Lugo organization. (Trial Tr. vol. 34, 2619-20, Docket No. 823.) Santiago-Lugo operated a central distribution point from his base of operations in the Virgilio Dávila housing project in Bayamón, Puerto Rico, from where he supplied his various satellites, including the drug point at Enrique Catoni. Over a seven-year period, this conspiracy encompassed millions of dollars in sales, which represented myriad kilograms of narcotics, from at least six distribution points. The conspirators, armed with various firearms, including AK-47 and AR-15 assault rifles, engaged in a bloody turf war with the rival Rosario brothers gang that resulted in horrific murders not seen in even the most lurid Hollywood gangster movies. In April 1994, Defendant was arrested at his home, where police discovered narcotics, two assault rifles, and ten magazines of ammunition — these magazines included a "snail magazine," which holds over 100 rounds of ammunition. Later that year, Puerto Rico Police Department homicide detective Héctor Del Río Román testified that he stopped Defendant for a traffic violation and discovered cocaine in his vehicle. (Trial Tr. vol. 22, 965-83, Docket No. 750.)
Prior to sentencing, the Probation Office prepared a PSR detailing Defendant's criminal history, which included convictions for car theft, armed robbery, possession of narcotics, and firearms violations. (Docket No. 3365-2 at 56-61.) Most disturbingly, Defendant participated in the March 1994 kidnapping and murder of José A. Cruz-Rodríguez, for which Defendant was convicted of second-degree murder.
II. Analysis
Defendant argues that because his original base offense level was dependent upon a quantity of crack, he qualifies for a sentence reduction. While Defendant is correct in that he appears to fall into the category of inmates to whom the crack sentencing reduction may apply, we do not agree that such a reduction is warranted in this instance.
In light of the sentencing factors enumerated by Congress in § 3553(a), a reduction of Defendant's sentence would be inappropriate. Section 3553(a)(2)(A) requires we consider whether the sentence reflects the seriousness of Defendant's offense and whether it is a just punishment. Defendant participated in a drug-distribution conspiracy that trafficked massive quantities of cocaine, heroin, and marijuana throughout northern Puerto Rico over many years. Moreover, this was a violent organization that engaged in a deadly gang war in furtherance of the conspiracy. This was a serious crime for which a lengthy sentence was a necessary and just punishment. Furthermore, pursuant to both the commentary to § 1B1.10 and the § 3553(a) sentencing factors, we must consider public safety. Defendant's illegal possession of assault rifles and his serious criminal history of murder and robbery counsel against our granting a sentence reduction. It is the undersigned's opinion that Defendant is a dangerous and violent individual for whom the full 540 months' sentence is necessary to protect the public. Finally, we note that Puerto Rico is a major center of importation for illegal narcotics. Defendant's sentence is a valuable deterrent to those who would otherwise seek to follow his lead. For these reasons, we find a sentence reduction would be not only unwarranted but also a material injustice.
As for Defendant's request for a sentencing hearing and leave to attend such a hearing, Federal Rule of Criminal Procedure 43(b)(4) states that a defendant's presence is not required for § 3582(c) proceedings. Furthermore, the sentence reduction under § 3582(c)(2) does not afford defendants a full resentencing hearing. See, e.g., Dillon v. United States, 130 S. Ct. 2683 (2010) ("Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.").
Finally, Defendant made claims of various errors in his original PSR that justified the creation of new PSR before deciding the sentence reduction. We find his claims to be without merit and outside the limited scope of a § 3582 proceeding. The various infirmities that he alleges were inherent in his PSR should have been challenged on direct appeal.
III. Conclusion
For the foregoing reasons, we hereby DENY Defendant's motion for sentence reduction under § 3582(c)(2) (Docket No. 3361). We also DENY his motions to appear at a resentencing hearing (Docket Nos. 3429; 3438) and for the preparation of a new PSR (Docket No. 3433).
IT IS SO ORDERED.
San Juan, Puerto Rico, this 9th day of November, 2010.
08-31 (JAF)
UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO IN RE: PETITIONS FOR RETROACTIVE Misc. No. APPLICATION OF THE NOVEMBER 1, 2007 AMENDMENT TO THE CRACK COCAINE OFFENSE LEVEL GUIDELINES.ADMINISTRATIVE DIRECTIVE I.
Effective on November 1, 2007, the U.S. Sentencing Commission implemented amendment #706, as amended by #711, lowering the Base Offense Level for crack cocaine by two levels. The 2007 crack amendment will be applied retroactively effective March 3, 2008.See Application Note 10(D), entitled "Instructions for Combining Crack Cocaine with Other Drugs;" USSG § 1B1.10, as amended, and 18 U.S.C. § 3582(c)(2). See also The Federal Cocaine Sentencing Report submitted to Congress by the Sentencing Commission on May 15, 2007.Without prejudging any issues related to the implementation of the amendment, we deem it convenient to share with the bar some principles and legal understandings that reasonable minds find appropriate for consideration in the process of applying the amendment retroactively. The listing that follows does not prejudge any issue related to the approved retroactivity.
1. The 2007 Crack Amendment, #706 (as amended by #711), was made retroactive effective March 3, 2008. Retroactivity allows the sentencing court to consider a possible reduction of imprisonment for inmates meeting certain criteria set by statute and the guidelines. The relevant statutes and Guideline Policy Statement are the following:
A. Direction from Congress — 28 U.S.C. § 944(u)
B. Authority of the Court — 18 U.S.C. § 3582(c)(2)
C. Implementation Guideline — USSG § 1B1.10 as amended on November 1, 2007, effective on March 3, 2008.
2. 28 U.S.C. § 944(u) provides, in pertinent part, as follows:
If the Commission reduces the term of imprisonment recommended in the Guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.
In turn, 18 U.S.C. § 3582(c)(2) provides, in pertinent part, as follows:
In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant, or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in § 3553(a), to the extent that they are applicable, if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Lastly, the policy statement itself, USSG § 1B1.10, must be considered. See USSG § 1B1.10, as amended effective March 3, 2008. The amendment is available in a Supplement to the Guidelines Manual, www.ussc.gov. The amendment is not contained in the 2007 Guidelines Manual. Section § 1B1.10 implements 28 U.S.C. § 994(u) and provides guidance and limitations regarding motions under 18 U.S.C. § 3582(c)(2).
3. The retroactivity implementation process has three steps:
A. One must look at the Criminal Judgment; the Presentence Investigation Report, and any plea agreement to determine if the defendant is eligible for a reduction;
B. the next step requires a determination of the extent of any reduction allowed;
C. followed by a consideration of factors to determine if, and to what extent, a reduction is warranted.
4. The General Eligibility Requirements under 18 U.S.C. § 3582(c)(2) must be considered.
A. The defendant is serving a term of imprisonment;
B. the amendment is listed in USSG § 1B1.10(c), and
C. the Guideline Range applicable to the defendant has subsequently been lowered as a result of a listed amendment. It must be noted, however, that an amendment listed in § 1B1.10(c) may not always lower the defendant's applicable guideline range. Examples of this are the operation of another guideline, e.g., an "override" by the Chapter Four Career Offender Guideline, or a statutory provision, such as a mandatory minimum sentence which "trumps" the otherwise applicable range.
5. Some examples of when the Crack Cocaine Amendment would not result in a lowering of the guideline range are the following:
A. Base Offense Level is 12.
B. Quantity of crack cocaine exceeds 4,500 gms.
C. The defendant is a career offender (§ 4B1.1) or an armed career criminal (§ 4B1.4).
D. The defendant is subject to a mandatory minimum in excess of the guideline range (§ 5G1.1(b)).
E. Certain cases involving multiple drug types.
This listing is not numerus clausus. Other cases will have to be considered by judicial officers, in order to determine if they are foreclosed from the lowering effect of the amendment. Some of these cases may include individuals who have received the benefit of a sentence reduction under Fed.R.Crim.P. 35(b) or defendants whose binding plea agreements, Fed.R.Crim.P. 11(e)(1)(C), may exclude further reductions.
Pursuant to USSG § 1B1.10(b)(1) and App. Note 2, the amended guideline range is determined by substituting only the amendment listed at USSG § 1B1.10(c) into the guidelines as applied at the original sentencing. All other guideline application decisions for the original sentencing remain unaffected.
It is important to note that the crack amendment implementation procedure does not require a full resentencing. It is not a de-novo sentencing. See 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10(a)(3). Proceedings in the reduction of a sentence under 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10 DO NOT constitute a full resentencing of the defendant.
6. Pursuant to Fed.R.Crim.P. 43(b)(4), "A defendant need not be present under any of the following circumstances . . . Sentence Correction — The proceeding involves the correction or reduction of a sentence under Rule 35 or 18 U.S.C. § 3582(c)(2)."
It is also important to note that pursuant to USSG § 1B1.10(b)(c)(2)(C), the reduced term of imprisonment cannot be less than the term of imprisonment the defendant has already served.
7. There appear to be other general limitations on the extent of possible reduction. Under USSG § 1B1.10(b)(2)(A), if the original sentence was within the original guideline range, the term of imprisonment cannot be reduced to less than the minimum of the amended guideline range. An example is in order.
Example: Original sentence within range, § 1B1.10(b)(1) (2)(A) and App. Note 3
Original Guideline Range: 41-51 months (OL 21 — CHC II)
Original Term Imposed: 46 months
Amended Guideline Range: 33 to 41 months (OL 19 — CHC II)
The court shall not reduce defendant's term of imprisonment to a term less than 33 months.
Other limitations must be considered, as well as exceptions to the rule. If the original sentence was less than the minimum of the original guideline range, i.e., a departure or variance, a reduction comparably less than the amended guideline range is permissible. However, when the original sentence was a variance pursuant to United States v. Booker, 543 U.S. 220 (2005), a reduction from the sentence originally imposed generally would not be appropriate.
Booker-related issues must be addressed by the district court. However, Booker may not apply because the amendment is directed at reducing, not increasing, the defendant's sentence. Also, the distinction between departures and variances must be clearly understood. One thing is a traditional departure. However, if we are to consider a post-Booker variance, where the sentencing judge had more liberty to sentence a particular defendant, then there may not be basis for further reductions based on the amendment. Another example is of help.
Example: Original sentence below range, USSG § 1B1.10(b)(2)(B) App. Note 3.
Original Guideline Range — 70-87 months
Original Term Imposed — 56 months
(Court imposed a downward departure of 20% below the minimum of the guideline range)
Amended Guideline Range — 57-71 months
A reduction of 20% from the amended guideline range minimum of 57 months would result in a comparable reduction, i.e., 46 months.
8. USSG § 1B1.10 and App. Note 1(B) make reference to another factor to consider in determining if and to what extent a reduction is warranted. Within the limits established by § 1B1.10(b) as to the possible extent of a reduction, the following shall be considered:
§ 3553(a) factors, as consistent with § 3582(c)(2):
— Public safety: The seriousness of the danger to any person or the community.
— The court may also consider post-sentencing conduct of the defendant while in prison.
9. Lastly, supervised release revocations are not affected by the amendment. pursuant to § 1B1.10, App. Note 4, only a term ofimprisonment imposed as part of the original sentence can be reduced under § 1B1.10. No other component of the sentence, such as fines or restitutions, can be reduced under this provision. A reduction in the term of imprisonment imposed upon revocation of supervised release is not authorized.
II.
As part of the implementation of the 2007 crack amendments, the U.S. Sentencing Commission held a sentencing summit in St. Louis, Missouri, on January 23-25, 2008. During said meeting, the various attending districts were represented by prosecutors, Federal Public Defenders, Probation Department personnel, and the court itself. Our District representatives worked intensively and were able to foster cooperation and flexibility, in order to implement the retroactivity of the crack amendment.
The following is a general outline of this District's implementation plan.
1. The District of Puerto Rico will entertain motions, pro se or otherwise, seeking relief under the retroactive crack amendment effective March 3, 2008. Any motion filed before the effective date of the amendment will not be decided until at least March 3, 2008.
2. The filing of any such motion will be notified to the U.S. Attorney's Office, Attn: Supervisory Asst. U.S. Attorney Jeannette Mercado and Asst. U.S. Attorney José Ruiz, Chief, Criminal Division, Torre Chardón, 350 Carlos Chardón St., San Juan, PR 00918; Tels. (787) 282-1884 and (787) 282-1809, e-mail:jeanette.mercado@usdoj.gov and jose.ruiz3@usdoj.gov, respectively; and to the U.S. Probation Office, Attn: Assistant Deputy Chief U.S. Probation Officer Zulma Basora, 400 Federico Degetau Federal Building, 150 Carlos Chardón Avenue, San Juan, PR 00918-1703; Tel. (787) 766-5814; e-mail:zulma_basora@prp.uscourts.gov and belinda_zayas@prp.uscourts.gov. If the filing is made pro se, the Court Services Manager and Courtroom Deputy Clerk to the Chief Judge, Rebecca Agostini-Viana, U.S. District Court Clerk's Office, 150 Carlos Chardón St., San Juan, PR 00918, Tel. (787) 772-3053, e-mail:becky_agostini@prd.uscourts.gov, will enter a docket order notifying the parties concerned of said filing.
3. The court appoints the Federal Public Defender's Office,Attn: AFPD Héctor L. Ramos-Vega, 241 Franklin D. Roosevelt Ave., San Juan, PR 00918-2441; Tel. (787)-281-4922, e-mail:hector_ramos@fd.org and ruth_sein@fd.org, as the default defense counsel for all pro-se filings. This default appointment is without prejudice of retained representations or CJA appointments if ordered by the court.
4. Upon receipt of notice of the filing of any such motions seeking reduction of sentence, the Probation Office will prepare and electronically file, within ten (10) days, a "retroactivity package" consisting of the following documents:
A. Presentence Investigation Report
B. Judgment and Commitment Order
C. Plea Agreement
D. Indictment
E. Sentencing transcript if available.
The filing will be made restricted to "Selected Parties" (counsel and court), and will include a short recommendation as to eligibility for the benefits of the retroactive amendment.
5. The designated Assistant Federal Public Defender, retained or otherwise appointed counsel, and the Assistant U.S. Attorney will meet to consider and announce any stipulated disposition. Such recommendation to the court must be filed not later than ten (10) days after the filing of the retroactivity package and Probation Office recommendation contemplated in paragraph 4, ante. If the stipulated disposition is accepted by the court, an AO Form 245, Form Order Regarding Motion for Sentence Reduction, will be entered forthwith.
The Clerk will mark the ten-day periods contemplated herein for automatic follow-up and notice of electronic notification to counsel.
6. In the absence of stipulation for disposition as contemplated in paragraph 5 above, the Probation Office will make a final recommendation as to disposition within five (5) days of the entry of the electronic notification to counsel contemplated in paragraph 5 ante. Thereafter, the parties will have five (5) days to file simultaneous memoranda not exceeding four pages, proposing a final disposition. Upon the expiration of such term, the final disposition will be announced by the court, without the need of a hearing and without a mandatory request of the defendant's presence. The court will then enter an expedited disposition order in AO Form 245 and the same will be filed forthwith.
The short terms provided in paragraphs 5 and 6 are intended to mainly accommodate those cases where an inmate is a candidate for immediate release.
7. Individual judicial officers are at liberty to consider other circumstances that may require the extension or modification of the terms of this Administrative Directive.
San Juan, Puerto Rico, this 15th day of February, 2008.