U.S. v. Morillo, Crim. 97-10248-WGY.
| Citation | 148 F.Supp.2d 84 |
| Decision Date | 16 May 2001 |
| Docket Number | No. Crim. 97-10248-WGY.,Crim. 97-10248-WGY. |
| Parties | UNITED STATES of America v. Geraldo MORILLO, Manuel Morillo, and Ramon Montes Deoca. |
| Court | U.S. District Court — District of Massachusetts |
Patrick M. Hamilton, U.S. Attorney's Office, Boston, MA, for Plaintiff.
Ramon Montes Deoca ("Ramon"), Geraldo Morillo ("Geraldo"), and Manuel Morillo ("Manuel") move to modify their sentences pursuant to 18 U.S.C. § 3582(c)(2) based on a recent amendment to the United States Sentencing Guideline ("U.S.S.G." or "Sentencing Guidelines") section 2D1.2, which creates a sentence enhancement for drug offenses that occur near a protected location or involve an underage or pregnant individual.
On September 24, 1997, Ramon, Geraldo, and Manuel were indicted for violating various federal drug laws. A superseding indictment followed on November 19, 1997. The superseding indictment charged Ramon and Geraldo with one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (Count 1) and five counts of possession with intent to distribute and the distribution of heroin in furtherance of the conspiracy in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2-6). The superseding indictment charged Manuel with one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (Count 1), four counts of possession with intent to distribute and the distribution of heroin in furtherance of the conspiracy in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2, 4-6), and four counts of possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 7-10). A notice of the applicability of 21 U.S.C. § 8601 was appended to Counts two, three, five, seven, and eight because they occurred within one thousand feet of a protected school.
All three defendants entered into plea agreements with the Government. This Court accepted the defendants' guilty pleas pursuant to their plea agreements on April 1 and April 2, 1998. Ramon and Geraldo pled guilty to one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (Count 1) and five counts of possession with intent to distribute and distribution of heroin in furtherance of the conspiracy in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2-6). Manuel pled guilty to one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846 (Count 1), three counts of possession with intent to distribute and distribution of heroin in furtherance of the conspiracy in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2, 4, 5), and four counts of possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 7-10).2 This Court sentenced the defendants accordingly under the Sentencing Guidelines, applying the sentence enhancement contained in section 2D1.2 based on the finding of or stipulation to a drug offense within one thousand feet of a protected school. The Court now considers the appropriateness of this enhancement in light of that section's recent amendment.
Section 3582 of Title 18 of the United States Code sets forth limited circumstances under which a court may modify a term of imprisonment once it has been imposed. It provides in relevant part that:
The court may not modify a term of imprisonment once it has been imposed except that—
. . . . .
(2) 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), upon motion of the defendant ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). 28 U.S.C. § 994(o) provides, in turn, that "[t]he Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section," id. Pursuant to section 994(o), the Commission periodically amends the Sentencing Guidelines. The most recent set of amendments became effective on November 1, 2000 and is set forth in the Supplement to Appendix C of the United States Sentencing Commission Guidelines Manual. Ramon, Geraldo, and Manual seek to benefit from Amendment 591, which is included among the Commission's most recent amendments.
Amendment 591 amends, among other sections, U.S.S.G. § 2D1.2, the section that creates a sentencing enhancement for drug offenses occurring near protected locations, including schools, or involving underage or pregnant individuals. Prior to Amendment 591, it was ambiguous whether the section 2D1.2 enhancement "appl[ied] only in a case in which the defendant was convicted of an offense referenced to that guideline or, alternatively, in any case in which the defendant's relevant conduct included drug sales in a protected location or involving a protected individual." U.S.S.G. Manual app. C, amdt. 591, at 31 (Supp.2000) (emphasis added). Amendment 591 resolved this ambiguity. As amended, the commentary to section 2D1.2 provides that:
This guideline applies only in a case in which the defendant is convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) or in a case in which the defendant stipulated to such a statutory violation.
U.S.S.G. § 2D1.2 cmt. 1. By its terms, Amendment 591 limits application of the enhancement to those cases in which the defendant was actually convicted of or stipulated to violating a statutory section referenced in section 2D1.2. U.S.S.G. Manual app. C, amdt. 591, at 31-32 (Supp.2000).
Because Ramon, Geraldo, and Manuel were sentenced well before Amendment 591 became effective on November 1, 2000, the Court must first consider whether it can apply Amendment 591 retroactively to the defendants. The Supreme Court has stated:
In addition to the [Commission's] duty to review and revise the Guidelines, Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect, 28 U.S.C. § 994(u).3 This power has been implemented in U.S.S.G. § 1B1.10, which sets forth the amendments that justify sentence reduction. Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991) (); see also United States v. Jordan, 162 F.3d 1, 3 (1st Cir.1998); United States v. Lopez-Pineda, 55 F.3d 693, 697 n. 3 (1st Cir.1995); Desouza v. United States, 995 F.2d 323, 324 & n. 1 (1st Cir.1993) (per curiam). Thus, the Court turns to U.S.S.G. § 1B1.10(c), which catalogs the amendments that the Court may apply retroactively. Section 1B1.10(c) lists Amendment 591 among the amendments that the Court may apply retroactively pursuant to section 3582(c)(2). U.S.S.G. §§ 1B1.10(a), (c).
Moreover, even under the First Circuit's approach, which allows courts to apply amendments to the Sentencing Guidelines retroactively if they clarify a Sentencing Guideline but not if they substantively change a Sentencing Guideline, United States v. Sanchez, 81 F.3d 9, 12 (1st Cir.1996); Isabel v. United States, 980 F.2d 60, 62 (1st Cir.1992); United States v. Havener, 905 F.2d 3, 4-8 (1st Cir.1990), Amendment 591 should be retroactive. Amendment 591 was promulgated to resolve the circuit conflict that arose surrounding the proper application of the enhancement in U.S.S.G. § 2D1.2. U.S.S.G. Manual app. C, amdt. 591, at 31 (Supp. 2000). Accordingly, the Commission itself explicitly described Amendment 591 as a "clarification," id. at 32. This Court defers to the Commission's characterization of its amendments. See David v. United States, 134 F.3d 470, 476 (1st Cir.1998) (); Isabel, 980 F.2d at 62 (). Contra United States v. Diaz, 245 F.3d 294, 303 (3d Cir.2001) (). Therefore, the Court may apply Amendment 591 retroactively.
The Government argues that even the amended U.S.S.G. § 2D1.2 subjects Ramon, Geraldo, and Manuel to its enhancement because each defendant entered into a plea agreement to plead guilty to possession with intent to distribute and distribution of heroin within a school zone in violation of 21 U.S.C. § 860, which is specifically referenced in U.S.S.G. § 2D1.2. In so arguing, the Government relies on the literal text of each of the defendant's motions, which states that "[t]he defendant was charged and entered into a plea agreement for multiple counts of violating 21 U.S.C. Sections 841, 846, and 860," Manuel's Mot. ¶ 1 (emphasis added); accord Geraldo's Mot. ¶ 1; Ramon's Mot. ¶ 1. Gov't's Opp'n ¶ 4.
The Court agrees with the Government that if, in fact, the defendants entered into a plea agreement to plead guilty to a violation of section 860, then amended U.S.S.G. § 2D1.2 still subjects them to its sentence enhancement. Amendment 591 clarified that the enhancement of U.S.S.G. § 2D1.2 applies only when the defendant was convicted of or stipulated to an offense referenced in...
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