Settembrino v. U.S., 92-6061-CR.
| Decision Date | 28 December 2000 |
| Docket Number | No. 92-6061-CR.,92-6061-CR. |
| Citation | 125 F.Supp.2d 511 |
| Parties | Joseph SETTEMBRINO, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
D. Fredrico Fazio, Fazio Dawson Disalvo Cannon, Levine Abers & Podrecca, Fort Lauderdale, FL, for Joseph Settembrino.
Scott Behnke, United States Attorney's Office, Fort Lauderdale, FL, for U.S.
THIS CAUSE has come before the Court upon Movant's pro se "Motion for Re-Sentencing." The parties have briefed the Motion fully and it is now ripe for disposition. For the reasons stated below, the Motion is GRANTED.
On January 8, 1993, Movant Joseph Settembrino plead guilty to conspiracy to possess with intent to distribute Lysergic Acid Diethylamide (LSD) in violation of 21 U.S.C. § 846. Settembrino was found responsible for 2000 dosage units of LSD, which equaled 31.453 grams. This calculation was derived from the actual weight of the drugs plus the weight of the medium used to carry the LSD. See Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); U.S. Sentencing Guidelines Manual, Ch.2, Pt.D, Table Commentary, at 86 (1992).
Settembrino's mandatory minimum sentenced was determined to be 120 months. Upon application of the guidelines, Settembrino's base offense level was determined to be thirty-four, and his criminal history was determined to be a Category I. Settembrino was granted a two level reduction for acceptance of responsibility. His guideline range was therefore determined to be 121 to 151 months of imprisonment. Based on these findings, Settembrino was sentenced to a term of imprisonment of 121 months followed by supervised release period of five years. Even at that time, this Court found such a harsh sentence troublesome, especially for a eighteen year-old first time offender. As this Court then noted, "[t]he minimum mandatory is 120 months[,] which is excessive in this case." See Judgement in a Criminal Case, Statement of Reasons, January 8, 1993.
Settembrino filed a Motion for resentencing pursuant to 18 U.S.C. § 3582(c)(2).1 This Court then issued an order to respond to the United States, followed by an order to the United States to show cause. The United States then responded, and Settembrino replied.
Settembrino argues that he should be resentenced to 120 months imprisonment under 18 U.S.C. § 3582(c)(2) and the current Sentencing Guidelines. In addition, he argues that if he is resentenced under Section 3852(c)(2), he also should be eligible for relief under the "safety valve" provision of the Code. See 18 U.S.C. § 3553(f). The Government agrees that Settembrino's sentence should be reduced by one month, but argues that Settembrino is not eligible for the safety valve provision. This Court agrees with Settembrino.
The first issue for this Court is whether Settembrino is eligible for resentencing under 18 U.S.C § 3582(c)(2) and the current Sentencing Guidelines. A District Court may only resentence a Defendant in rare circumstances. One such circumstance is provided by 18 U.S.C. § 3582(c)(2). Under Section 3582(c)(2) this court "has discretion to reduce the term of imprisonment of an already incarcerated defendant when that defendant was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." United States v. Bravo, 203 F.3d 778, 780 (11th Cir.2000).
Settembrino originally was held responsible for the actual weight of the drugs plus the weight of the medium used to carry the LSD. Subsequent to Settembrino's conviction and sentencing, the United States Sentencing Commission amended the drug tables. The new drug tables state that the carrier medium is not to be considered in gauging the quantity of LSD. See U.S. Sentencing Guidelines Manual § 2D1.1(c), n.H (2000) (hereinafter Amendment 488). Settembrino qualifies for this amendment because it applies retroactively. See United States v. Marshall, 83 F.3d 866, 867 (7th Cir.1996).
To determine whether this change will allow this Court to modify Settembrino's term of imprisonment, Section 3582(c)(2) and the Sentencing Guidelines require this Court to make two determinations. See United States v. Vautier, 144 F.3d 756, 760 (11th Cir.1998). "First, th[is] court must substitute the amended guideline range for the originally applied guideline range and determine what sentence it would have imposed." Id.
Settembrino originally was held responsible for 31.453 grams of LSD. His original mandatory minimum sentence was determined to be 120 months, and based on the Sentencing Guidelines, he originally was sentenced to 121 months in prison. However, Amendment 488 establishes a standard weight per dose for LSD of 0.4 milligrams. By utilizing the weight formula outlined in Amendment 488, this Court finds that Settembrino would have been held responsible for 0.8 grams of LSD (2000 dosage units × 0.4 milligrams = 0.8 grams). Accordingly, Settembrino's new base offense level should be twenty-four, less two for his acceptance of responsibility. See U.S. Sentencing Guidelines Manual, § 2D1.1(c) (2000). Because his criminal history stays the same,2 his guideline range is therefore 41 to 51 months.
However, under Amendment 488 Settembrino cannot be resentenced to this new guideline range because he still is subject to a mandatory minimum sentence of 120 months. While the Guideline calculation is affected by Amendment 488, the Eleventh Circuit long has held that the statutory mandatory minimum calculation is governed by the rule enunciated by the Supreme Court in Chapman v. United States. See United States v. Pope, 58 F.3d 1567, 1570 (11th Cir.1995); see also Neal v. U.S., 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996); U.S. Sentencing Guidelines Manual, App. C at 305 (). Therefore, this Court holds that Settembrino would have been sentenced to a term of 120 months under the amended guidelines.
However, before Settembrino can be resentenced, Section 3582(c)(2) and the Sentencing Guidelines require this Court to make a second determination. See Vautier, 144 F.3d at 760. This court must also "consider the factors listed in § 3553(a) and determine whether or not to reduce the defendant's original sentence." Id. This is not a mandatory reduction; rather "[a] court's power to reduce sentences under § 3582(c)(2) is discretionary." See United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir.1997).
This Court has considered the factors presented in 18 U.S.C. § 3553(a), the policy statements issued by the Sentencing Commission, the Movant's motions, the Government's November 30 Response in Opposition, and the record. See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir.1997). Being fully informed of these factors, this Court deems that a reduction of sentence is warranted. Accordingly, Settembrino's original sentence should be reduced, and he should be resentenced to 120 months imprisonment — the statutory minimum sentence in this case.
Settembrino qualifies for a Section 3582(c)(2) resentencing. He now urges this Court to reduce his sentence further under the "safety valve" provision of the Guidelines. See U.S. Sentencing Guidelines Manual § 5C1.2 (2000); 18 U.S.C. § 3553(f). The safety valve provision "permits a district court to sentence below the otherwise applicable statutory mandatory minimum sentence for certain drug offenses if five criteria are established."3 See United States v. Pelaez, 196 F.3d 1203, 1204 (11th Cir.1999).
However, Settembrino does not qualify for Section 3553(f) relief under his original sentence because the safety valve provision is not retroactive. See id. at 1205 (citing Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 80001(c) 108 Stat. 1796, 1985-86) ("The safety valve's enacting statute provides that it `shall apply to all sentences imposed on or after' September 23, 1994."). Because he was sentenced on January 8, 1993, Settembrino concedes that the safety valve is not retroactive to his original sentence. Instead, Settembrino argues that his resentencing under Section 3582(c)(2) triggers the application of Section 3553(f). This Court agrees.
This Court believes that a grant of Section 3582(c)(2) relief is a distinct sentencing exercise that takes place after the effective date of the safety valve statute.4 While it is true that the Eleventh Circuit already has held that a Section 3582(c)(2) rehearing is not a "full de novo resentencing," see Cothran, 106 F.3d at 1562, it is an open question of "whether the safety valve statute, 18 U.S.C. § 3553(f), should be applied at a limited Section 3582(c)(2) rehearing." United States v. Bravo. 203 F.3d 778, 781 (11th Cir.2000).
Nothing in the language of the statute would prevent such an application. Indeed, the safety valve statute itself states that it applies "to all sentences imposed on or after the date of enactment, September 23, 1994." Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 80001(c) 108 Stat. 1796, 1985-86 (emphasis added). The plain meaning of this language is clear. It applies to all sentences. As the Sixth Circuit has stated, there is nothing in the plain language of the statute or statutory history that "limits its application to initial sentencing or precludes its application when a modified sentence is imposed." United States v. Reynolds, 111 F.3d 132 (6th Cir.1997) (table), available in 1997 WL 152032.
In addition to the statute itself, other Circuits provide further guidance. For example, in United States v. Mihm, the Eighth Circuit was faced with an analogous situation. 134 F.3d 1353 (8th Cir. 1998). In that case, Defendant Mihm was sentenced under a Guidelines formula that equated a...
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