Bartolomeo v. United States

525 F.Supp.3d 270

John BARTOLOMEO

v.UNITED STATES of America

CRIMINAL ACTION NO. 96-CR-10252-RWZ-2

United States District Court, D. Massachusetts.

Signed March 16, 2021

Christopher F. Bator, Jennifer Hay Zacks, Christopher R. Donato, Nathaniel R. Mendell, United States Attorney's Office, Boston, MA, Geoffrey E. Hobart, Covington & Burling, Washington, DC, Michael J. Pelgro, Middlesex District Attorney's Office, Woburn, MA, for United States of America.

MEMORANDUM & ORDER

ZOBEL, S.D.J.

On May 21, 1998, petitioner pleaded guilty to twelve counts of a superseding indictment charging him with conspiracy to distribute cocaine and methamphetamine and with possessing those drugs with intent to distribute them. The sentencing court allowed a joint motion for upward departure pursuant to United States Sentencing Guideline § 4A1.3(e) in which petitioner assented to a 35-year term of imprisonment. Underlying his assent was an agreement by state authorities, with federal concurrence, not to charge him separately with the beating of one rival gang member and the killing of another. The matter is before me now on petitioner's motion for sentence modification pursuant to 18 U.S.C. § 3582(c)(2), and in the alternative, 18 U.S.C. § 3582(c)(1). Docket # 571.

Petitioner renews an argument to reduce his sentence based on 18 U.S.C. § 3582(c)(2) and Guideline Amendment 782, also known as the "Drugs Minus Two" Amendment, which retroactively reduced the offense levels applicable to drug offenses by amending the drug quantity table contained in USSG § 2D1.1.¹ He asserts that his sentence was comprised of a drug segment and a segment for the uncharged conduct and asks this court to reduce the drug portion of his sentence.

To qualify for a reduction pursuant to § 3582(c)(2), petitioner must first show that his sentence was based on a guideline sentencing range that was subsequently lowered by the Sentencing Commission. He contends that the Guidelines were relevant to the sentence, emphasizing that the parties moved for an upward departure "from the guideline range otherwise applicable" and that the sentencing court calculated the range prior to imposing sentence. The argument is unavailing. While a sentencing judge is required "to calculate the now-advisory Guidelines range in every sentencing proceeding ... it does not follow that any sentence subsequently imposed must be regarded as ‘based on’ a Guidelines range." Koons v. United States, ––– U.S. ––––, 138 S. Ct. 1783, 1789, 201 L.Ed.2d 93 (2018) ("[w]hat matters ... is the role that the Guidelines played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation.")).²

Petitioner argues that the Guidelines were the primary basis supporting the drug component of the sentence. However, neither the plea agreement nor the sentencing judge delineated a sentence for the drug offenses separate from the uncharged conduct. The sentence was based on the parties’ joint recommendation for a 35-year term of imprisonment for both the drug convictions and the additional conduct:

The transcript for the joint hearing on change of plea and sentencing suggests that the judge considered the drug quantity and career offender status in calculating the applicable GSR, but relied on neither in ultimately allowing the joint motion for an upward departure.

See Docket # 548 at 11. The First Circuit affirmed this court's conclusion on appeal. See Bartolomeo v. United States, 960 F.3d 34, 48 (1st Cir. 2020) (relying, in part, on the sentencing judge's statement that he would "determine the sentence prescribed by the Guidelines, ‘but [the] sentence will be based on the [departure] motion,’ not the ‘calculations.’ "). Petitioner does not qualify for a sentence reduction under 18 U.S.C. § 3582(c)(2) because his sentence was not based on a guideline range later amended by the Sentencing Commission...