Opinion
CRIMINAL ACTION NO. H-04-0523-2.
February 5, 2009
MEMORANDUM AND OPINION
The defendant, Raul Rebollar, was convicted after pleading guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine. He was sentenced to a prison term of 160 months, within his guideline range of 151 to 188 months. He argues that his guideline range was incorrectly calculated because his criminal history category was VI and should have been V. He filed an unsuccessful direct appeal and motion to vacate under 28 U.S.C. § 2255.
In this motion, Rebollar asks this court to reduce his sentence based on 18 U.S.C. § 3582(c)(2). That statute permits a court to reduce the sentence of a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Rebollar seeks a reduction in accordance with Amendment 706 to the Sentencing Guidelines, which recently altered the drug quantity table in U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 706 (2007). Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses. See id. The Commission made this amendment retroactively applicable effective March 3, 2008. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008) (listing Amendment 706 under U.S.S.G. § 1B1.10(c) as a retroactively applicable amendment).
Congress has authorized a reduction of sentence "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o) . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Section 1B1.10 provides:
(2) Exclusions.-A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if —
(A) none of the amendments listed in subsection (c) is applicable to the defendant; or
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range.
In the Application Notes, the Commission gives this explanation:
Eligibility. Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range. Accordingly, a reduction in the defendant's term of imprisonment is not authorized under 18 U.S.C. § 3582(c) and is not consistent with this policy statement if: (A) none of the amendments listed in subsection (c) is applicable to the defendant; or (B) an amendment listed in subsection (c) is applicable to the defendant but the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).
U.S.S.G. § 1B1.10.
This case does not qualify for a sentence reduction under Amendment 706 and § 582(c)(2). Rebollar's guideline calculation was based solely on quantities of powder cocaine (not cocaine base). Amendment 706 does not apply to powder cocaine, but only to cocaine base.
Rebollar also cites Amendment 709. It does not authorize the reduction he seeks because it does not apply retroactively. Before an amendment can be given retroactive effect, it must be listed in section 1B1.10(c). United States v. Dullen, 15 F.3d 68, 71 (6th Cir. 1994). Amendment 709 is not listed in this section and does not apply retroactively. United States v. Smith, 549 F.3d 355, 362 n. 2 (6th Cir. 2008) ("The Guidelines authorize such post-conviction reductions on the basis of an enumerated and limited set of amendments, of which the amendment at issue here is not one. See U.S.S.G. § 1B1.10."). Nor is there any indication in the commentary that Amendment 709 was meant to apply retroactively.
Rebollar also cites Amendment 715, which is included in section 1B1.10(c). Amendment 715 does not apply to Rebollar. Amendment 715 struck subdivision (D) and added a provision in subdivision (E) of Note 10, establishing a flat 20 kilogram marijuana equivalency for each gram of cocaine base. Subdivision (D) of Note 10, as amended by Amendment 715, now provides that, in offenses involving cocaine base and one or more other controlled substances, the combined offense level is determined by applying subdivision (B) of Note 10 and reducing the combined offense level by two levels. However, the two-level reduction is not to be applied (1) in cases involving 4.5 kilograms or more, or less than 250 milligrams, of cocaine base or (2) in cases where the reduction results in a combined offense level less than the combined offense level that would apply under subdivision (B) if the offense involved only the controlled substance or substances other than cocaine base. In this case, Rebollar was sentenced based on cocaine powder, not cocaine base, and Amendment 715 does not apply.
The motion for reduction of sentence, (Docket Entry No. 162), is denied. The motion for appointment of counsel, (Docket Entry No. 163), is also denied.