
    UNITED STATES of America v. Joyce ROSALES, Defendant.
    No. 08-CR-855 (VM).
    United States District Court, S.D. New York.
    Signed June 22, 2015.
    Filed June 23, 2015.
    Johri Peter Cronan, U.S. Attorney’s Office, New York, NY, for’United States of America.
    Kelley J. Sharkey, Kelley J. Sharkey, Esq., Brooklyn, NY, for Defendant.
   DECISION AND ORDER

VICTOR MARRERO, District Judge.

On November 21, 2012 defendant Joyce Rosales (“Rosales”) pled guilty before Magistrate Judge Debra Freeman to one count of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846. (See Dkt. Minute Entry for 11/21/2012.) This Court accepted Rosales’s guilty plea (Dkt. No. 39) and sentenced him to seventy (70) months imprisonment. (Dkt. No. 45.)

Effective November 1, 2014, the United States Sentencing Commission (“Sentencing Commission”) adopted Amendment 782, which modified Section 2D1.1 of the United States Sentencing Guidelines Manual (“Sentencing Guidelines”) to lower the Sentencing Guidelines’ sentencing range for certain categories of drug-related offenses (“Amendment 782”). The Sentencing Commission then adopted Amendment 788 (“Amendment 788”), also effective November 1, 2014, which authorized retroactive application of Amendment 782 to defendants sentenced before its effective date. Amendment 788 also specifies that no incarcerated defendant can be released pursuant to Amendment 788 prior to November 1, 2015. Furthermore, the “court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.” U.S.S.G. § lB1.10(e)(l).

On February 18, 2015, Rosales filed a motion (“Motion”) for a sentence reduction pursuant to Amendments 782 and 788. (Dkt. No. 50.) The Government responded on March 5, 2015, arguing that Rosales is ineligible for a sentencing reduction. (Dkt. No. 49.) On June 16, 2015, the Probation Department made a submission to the Court and the parties, indicating its assessment that Rosales is ineligible for a sentence reduction under Amendments 782 and 788, because the sentence he received and is now serving is within the sentencing range applicable under Amendment 782. There have been no further submissions or filings relating to this matter.

STANDARD

Under Section 3582(c)(2) of Title 18 (“Section 3582(c)(2)”), United States Code, when a defendant has been sentenced to a term of imprisonment based on a sentencing range that is subsequently lowered by the Sentencing Commission, the Court may act upon motion of the defendant or the Director of the Bureaus of Prisons, or upon its own motion, to reduce the defendant’s term of imprisonment. A court may grant a sentence reduction only after considering the factors set forth in Section 3553(a) of Title 18 (“Section 3553(a)”) and upon a finding that such a reduction is consistent with applicable policy statements issued by the Sentencing Commis-. sion. See id.

Here, when considering a sentence reduction under the two-step inquiry laid out in Dillon v. United States, the Court must first decide whether a defendant is eligible for a sentence modification and then determine the “extent of the reduction authorized.” 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). In reviewing eligibility, “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b). As a threshold matter, for a defendant to be eligible for a reduction, the amended Sentencing Guidelines range must be lower than the range that was applied at sentencing.

With regard to the extent of the reduction authorized, Section 1B1.10(b)(2)(A) of the Sentencing Guidelines provides that “the [C]ourt shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy state-merit to a term that- is less than the minimum of the amended guideline range.” The only exception to this rule applies if the defendant was sentenced to a term of imprisonment below the Sentencing Guidelines range pursuant to a government motion “to reflect’ the defendant’s "substantial assistance to authorities,” in which case the Court is authorized to grant a reduction comparably less than the amended Sentencing Guidelines range. Id. However, in the absence of a sentencing departure based on substantial assistance, the Court is not permitted to “reimpos[e] departures or variances imposed at the defendant’s original .sentencing hearing.” U.S. v. Erskine, 717 F.3d 131, 137 (2d Cir.2013). Furthermore, “[i]n no event may the reduced term of imprisonment be less than the term of imprisonment .the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C).

If the defendant is eligible for a sentencing reduction, the Court proceeds to the second step of the Dillon analysis. At that point, the Court must decide-in light of the Séction 3553(a) factors-whether to grant a reduction. See Dillon, 560 U.S. at 827, 130 S.Ct. 2683. Under Section 3553(a), the Court must consider, ámong other things, “the nature and circumstances of the offense and the history and characteristics of the defendant” and the need to “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a).

APPLICATION

The Court finds that Rosales is not eligible for a sentence reduction under Amendments 782 and 788. Rosales’s base offense level at the time of sentencing was grounded on Section 2D1.1 of the Sentencing Guidelines, the section modified by Amendment 782. Rosales was not sentenced as a “career offender” under Section 4B1.1 of the Sentencing Guidelines, nor was he subject to a mandatory minimum sentence in excess of the applicable Sentencing Guidelines range. Therefore, had Amendment 782 been in effect at the time of Rosales’s sentencing (see U.S.S.G. § lB1.10(b)), his total offense level would have been 27 instead of 29, and the Sentencing Guidelines range for his sentence would have been 70-87 months instead of 87-108 months.

Having determined that the amended Sentencing Guidelines range is lower than the range that was applied at sentencing, the Court next must determine the extent of the reduction authorized by the Amendments. Dillon, 560 U.S. at 827, 130 S.Ct. 2683. The Court sentenced Rosales to a term of incarceration of 70 months, which was below the Sentencing guidelines range in effect at the time of sentencing. However, the. Court’s departure was not made pursuant to a government motion regarding substantial assistance to the Government. Consequently, under Amendment 788, the Court is now authorized to reduce Rosales’s term of imprisonment to as low as — but not lower than — 70 months, the minimum of the amended Sentencing Guidelines range. See Erskine, 717 F.3d at 137; U.S.S.G. § 1B1.10(b)(2)(A); see also 18 U.S.C. § 3582(c)(2). Yet, it is impossible for the Court now to reduce Rosales’s sentence to 70 months, because the Court already sentenced Rosales to a term of 70 months — the minimum of the amended Sentencing Guidelines range. The Court is therefore not authorized to make any reduction to Rosales’ sentence pursuant to Amendments 782 and 788.

The Court therefore concludes that Rosales is not eligible for a sentence reduction pursuant to Amendments 782 and 788 to the United States Sentencing Guidelines.

ORDER

For the reasons stated above, it is hereby

ORDERED that the motion of defendant Joyce Rosales (Dkt. No. 50) for a sentence reduction pursuant to Amendments 782 and 788 of the United States Sentencing Guidelines is DENIED with prejudice.

SO ORDERED.  