U.S. v. Cruz
| Decision Date | 27 February 2008 |
| Docket Number | No. 02-CR-0725 (CPS).,02-CR-0725 (CPS). |
| Citation | 560 F.Supp.2d 198 |
| Parties | UNITED STATES of America, Plaintiff, v. Elizabeth CRUZ, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Lara Treinis, U.S. Attorneys Office, Criminal Division, Brooklyn, NY, for Plaintiff.
Mitchell Golub, Esq., Attorney at Law, New York, NY, for Defendant.
Elizabeth Cruz ("Cruz" or "defendant") pleaded guilty on July 19, 2002 to conspiring to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A)(iii). On May 20, 2003, this Court sentenced defendant to a 78-month term of incarceration and a 3-year term of supervised release.1 Defendant is currently scheduled for release on September 23, 2008. Now before this Court is defendant's motion for modification of her sentence, pursuant to 18 U.S.C § 3582(2)(c). For the reasons set forth below, defendant's motion is denied.
Defendant was charged with participation in a powder and crack cocaine distribution conspiracy headed by Francisco Aponte, defendant's common-law husband. Aponte and defendant have two children. As described in the Presentence Investigation Report ("PSR"), the factual findings of which the Court adopted, Aponte ran the operation. In exchange for supporting her and her two children, Aponte asked defendant to assist him by counting money, and weighing and packaging drugs.
Defendant pleaded guilty on July 19, 2002 pursuant to a plea agreement. At defendant's May 20, 2003 sentencing, the government declined to file a motion pursuant to Section 5K1.1 of the United States Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") since the defendant had been arrested on new, drug related charges. The Court, adopting the PSR's findings, found defendant accountable for 1,756.07 grams of crack-cocaine and for 758.821 grams of powder cocaine. Converting these amounts to marijuana, pursuant to U.S.S.G. § 2D1.1, the Court found defendant accountable for the equivalent of 35,273.164 net kilograms of marijuana. Accordingly, the base offense level for defendant's conduct was set at a level of 38.
The Court further determined that a three-level reduction for acceptance of responsibility was not warranted, due to the defendant's subsequent arrest. May 20, 2003 Sentencing Transcript, at 14 (hereinafter "Tr. at ___"). The Court also agreed with the PSR's conclusion that defendant was not entitled to a minor role reduction. Id. However, the Court found that defendant was entitled to application of U.S.S.G. § 2D1.1(6) (2003), the so-called `safety valve.' Id. The Court then stated that the appropriate offense level appeared to be 30, which, with the safety valve reduction, resulted in a total offense level of 28. Tr. at 15. After asking both sides if the guidelines calculation were correct and receiving no objection, based on an adjusted offense level of 28 and a Criminal History Category ("CHC") of I, I sentenced defendant to a 78-month term of incarceration, at the bottom of what I took to be the applicable guideline range.2
On November 1, 2007, Amendment 706, as further amended by Amendment 711, to U.S.S.G. § 2D1.1, Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy, took effect.3 Amendment 706 generally reduces by two levels the base offense levels applicable to cocaine base ("crack") offenses. On December 11, 2007, the United States Sentencing Commission (the "Sentencing Commission") voted to apply the amendment retroactively to crack offenses, effective March 3, 2008. The Sentencing Commission also promulgated amendments to Policy Statement § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guidelines Range, which will implement the retroactive application of Amendment 706, Amendment 711, effective March 3, 2008 ("Policy Statement").
On January 9, 2008, defendant moved, through her counsel, for the modification of her sentence based on these amendments.
"A district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007). Pursuant to 18 U.S.C. § 3582(c)(2), however, the Court may modify the sentence of a defendant whose term of imprisonment was based on a sentencing range that has since been lowered by the Sentencing Commission.4 A district court may, however, reduce a term of imprisonment only if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2); see also 28 U.S.C. § 994(u) ().
U.S.S.G. § 1B1.10, p.s. (effective March 3, 2008), the applicable policy statement in this case, provides for several limitations or exclusions on the reduction of a term of imprisonment following an amendment to the Sentencing Guidelines. One exclusion provides that 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—... an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2) (B), p.s. (effective March 3, 2008).
Where a reduction is authorized, the Policy Statement states that a district court "shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range ..." U.S.S.G. § 1B1.10(b)(2)(A), p.s. (effective March 3, 2008).
Defendant concedes that reducing her base offense level pursuant to the amended Sentencing Guidelines would not reduce her recommended guideline range.5 A reduction in defendant's term of imprisonment is not authorized under § 3582(c)(2) and the Policy Statement because 1) the amendment does not have the effect of lowering her guideline range and 2) her current sentence is the minimum of the amended Sentencing Guideline range. See U.S.S.G. § 1B1.10(a)(2)(B) and (b)(2)(A).
Defendant argues, however, that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and subsequent Supreme Court cases render not only the Sentencing Guidelines advisory, but also the policy statements issued pursuant to 18 U.S.C. § 3582(c)(2). According to defendant, the change in the crack guidelines is the predicate necessary to place defendant again before the court for a re-sentencing ab initio and the limitations and exclusions set forth in the Policy Statement are no more mandatory than any other provision of the Sentencing Guidelines post-Booker.
Accordingly, the defendant argues that it would be reasonable for the court to find the new powder versus crack cocaine sentencing disparity still results in a sentence greater than necessary to fulfill the requirements of 18 U.S.C. § 3553. If the court could treat powder and crack cocaine as equivalents, defendant argues, she would be accountable for 2.5 kilograms of cocaine and her base offense level would be 28. Applying the two-level `safety valve' reduction, defendant's adjusted offense level would be 26. Were the Court to sentence defendant at the low end of the sentencing range for this lower offense level, 63 months, defendant would be entitled to release on March 3, 2008.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that any fact, other than the fact of prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." As the Court noted, "When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as `a tail which wags the dog of the substantive offense.'" Id. at 495, 120 S.Ct. 2348 (citing McMillan, 477 U.S. at 88, 106 S.Ct. 2411).
The Court noted:
If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court held that the "`statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis in original).
Following Blakely, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court "reaffirm[ed its] holding in Apprendi" and found the Guidelines violated the Sixth Amendment. Booker. 543 U.S. at 244, 125 S.Ct. 738. Accordingly, the Supreme Court excised the provision of the federal sentencing statute that made the Sentencing Guidelines mandatory, 18 U.S.C. § 3553(b)(1), making the ...
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...§ 1B1.10(a)(2)(B). These limits on this Court's authority to reduce a sentence under are jurisdictional, see United States v. Cruz, 560 F.Supp.2d 198, 202 (E.D.N.Y.2008), and the Second Circuit has made clear that this Court is "bound by the language" of such policy statements, because "Con......
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