From Casetext: Smarter Legal Research

U.S. v. Thomas

United States District Court, S.D. New York
Mar 28, 2008
S2 05 Cr. 482-02 (GEL) (S.D.N.Y. Mar. 28, 2008)

Opinion

S2 05 Cr. 482-02 (GEL).

March 28, 2008


OPINION AND ORDER


On October 29, 2007, this Court entered judgment sentencing defendant Luis Thomas to 144 months' imprisonment, following his plea of guilty to one count of conspiracy to distribute 50 grams and more of crack and 5 kilograms and more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Following the retroactive reduction by the United States Sentencing Commission of the guideline sentencing recommendations with respect to crack cocaine offenses, Thomas, pro se, applies for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). The application will be denied.

Since that sentence was imposed, the Sentencing Commission has adopted a change in the crack guidelines that reduces the base offense level associated with most quantities of crack by two levels. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28572 (2007). The Commission has also ruled that this change in the guidelines would be applicable retrospectively, and that effective March 3, 2008, a sentencing court would be authorized to reduce the term of imprisonment for a defendant who would have received a lower sentence had the amended guideline for crack cases been in effect at the time of his sentencing. See Sentencing Guidelines for the United States Courts, 73 Fed. Reg. 217-220 (2007). See also 18 U.S.C. § 3582(c)(2) (authorizing courts to reduce sentences where the Commission has reduced the guidelines range retroactively).

However, the reduction in the guidelines has no effect on Thomas's sentence, for two reasons. First, the amount of narcotics for which Thomas was responsible is so large that the guidelines applicable to him would be unaffected by the Commission's changes. According to the pre-sentence report ("PSR") on Thomas, the conclusions of which were adopted by the Court on this point without objection (see 10/22/07 Tr. 4-6), Thomas was responsible for distributing 5.1 kilograms of crack and 5.7 kilograms of powder cocaine. At the time of Thomas's sentence, these amounts were treated as the equivalent of 103,140 kilograms of marijuana, resulting in a base offense level of 38. (PSR ¶ 57.) Under the current version of the guidelines, the "marijuana equivalency" calculation is different and lower: the drugs distributed by Thomas are treated as the equivalent of 35,310 kilograms of marijuana. But the base offense level is still 38.

Where a defendant is responsible for distributing quantities of more than one drug, the base offense level is calculated by translating the amount of each drug into "marijuana equivalencies." See U.S.S.G. § 2D1.1, Application Note 10. In October 2007, 1 gram of cocaine was treated as the equivalent of 200 grams of marijuana, and one gram of crack was treated as equivalent to 20 kilograms of marijuana. Id., Drug Equivalency Tables, Cocaine and Other Schedule I and II Stimulants (2006). The calculation in this case, expressed in grams, is as follows: (5700 × 200) + (5100 × 20,000) = 103,140,000 = 103,140 kg. Anything over 30,000 kg of marijuana resulted in a base offense level of 38. U.S.S.G. § 2D1.1(c)(1) (2006).

Under the present guidelines, 1 gram of cocaine is still treated as equivalent to 200 grams of marijuana. U.S.S.G. § 2D1.1, Application Note 10(E), Drug Equivalency Tables, Cocaine and Other Schedule I and II Stimulants (2007). However, one gram of crack, in the amounts at issue here, is treated as equivalent to 6.7 kilograms of marijuana (as opposed to 20 kilograms previously). Id., Application Note 10(D)(i)(II) (2007). The calculation for this case, expressed in grams, is now: (5700 × 200) + (5100 × 6700) = 35,310,000 = 35,310 kg.) But anything over 30,000 kg of marijuana still results in a base offense level of 38. U.S.S.G. § 2D1.1(c)(1) (2007).

Thomas's situation can more easily be understood by disregarding the powder cocaine he distributed and focusing on the crack alone. Before the recent amendments, distribution of 1.5 kilograms or more of crack placed an offender at level 38, the highest base offense level for narcotics distribution. U.S.S.G. § 2D1.1(c)(1) (2006). After the amendments, the offense level for distributing at least 1.5 but less than 4.5 kilograms of crack is reduced to 36, in keeping with the two-level reduction for most crack offenses. U.S.S.G. § 2D1.1(c)(2) (2007), Now only offenders responsible for 4.5 kilograms or more fall into the highest category. Id. § 2D1.1(c)(1) (2007). Because Thomas distributed so much crack, he remains in the highest category, even under the current guidelines, even if his substantial distribution of powder cocaine were disregarded. Since the guideline range applicable to Thomas has not been lowered by the amendment, there is no basis for reducing his sentence pursuant to § 3582(c)(2).See U.S.S.G. § 1B1.10(a)(1) (2008) (providing that court may reduce a sentence pursuant to § 3582(c)(2) where "the guideline range applicable to that defendant has subsequently been lowered" by a retroactive guideline amendment).

Second, Thomas's actual sentence represents a substantial departure from the sentence recommended by the Guidelines. The Court determined his total offense level to be 35, after according him a three-level reduction for timely acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. (10/22/07 Tr. 6.) At Thomas's criminal history category of III, this offense level results in a recommended guideline range of 210 to 262 months of imprisonment. Due to circumstances warranting a departure from the guideline recommendation, the Court carefully balanced all of the factors relevant to determining an appropriate sentence, and determined that a sentence of 144 months was appropriate. (Id. 11-17.) Review of the transcript makes clear that the sentence imposed did not result from a percentage reduction of the recommended sentence or from subtracting some number of levels from the recommended sentence, or from any other mechanical model overly influenced by the technically applicable guidelines level. Rather, it resulted from a determination by the Court of an appropriate sentence in light of all the factors relevant to his sentence under 18 U.S.C. § 3553(a). Thus, even if the reduction in the crack guidelines had some application to Thomas, which it does not, the Court would decline to further reduce his sentence, as the sentence was primarily the product of other considerations and was not dictated by the guideline in any event.

As the Court noted, this calculation was "the most generous calculation I can make," since it rejected the PSR's recommendation of a three-level enhancement for a supervisory role, "which was a close call." (10/22/07 Tr. 15.)

Accordingly, Thomas is not eligible for a reduction in sentence pursuant to 18 U.S.C. § 3582(c), and his application for such a reduction is denied.

SO ORDERED:


Summaries of

U.S. v. Thomas

United States District Court, S.D. New York
Mar 28, 2008
S2 05 Cr. 482-02 (GEL) (S.D.N.Y. Mar. 28, 2008)
Case details for

U.S. v. Thomas

Case Details

Full title:UNITED STATES OF AMERICA, v. LUIS THOMAS, Defendant

Court:United States District Court, S.D. New York

Date published: Mar 28, 2008

Citations

S2 05 Cr. 482-02 (GEL) (S.D.N.Y. Mar. 28, 2008)