United States v. Lopez

523 F.Supp.3d 432

UNITED STATES of America,

v.Hector LOPEZ, Defendant.

11-cr-568 (PKC)

United States District Court, S.D. New York.

Signed February 26, 2021

Kan Min Nawaday, Sean Stephen Buckley, United States Attorney Office, New York, NY, for United States of America.

Patrick James Joyce, S/A/A, New York, NY, for Defendant.

OPINION AND ORDER

CASTEL, U.S.D.J.:

Hector Lopez was sentenced principally to 180 months’ imprisonment for participation in a heroin distribution conspiracy. For reasons that will be explained, his motion for a sentence reduction for "extraordinary and compelling reasons" will be granted and his sentence will be reduced to 121 months imprisonment. 18 U.S.C. § 3582(c)(1)(A).

At the time of sentencing, the Court adopted without objection the Guidelines range set forth in the plea agreement and recommended by the Office of Probation, 262 to 327 months’ imprisonment. The calculated range included a "career offender" enhancement premised on two prior convictions, one of which was for simple possession of a controlled substance. Under the clear language of the Guidelines, the possession offense did not qualify as a "controlled substance offense," then or now, and thus Lopez should not have received the career offender enhancement. U.S.S.G. § 4B1.2 (effective Nov. 1, 2011). The government does not dispute that the correct Guidelines range of imprisonment that should have been considered by the Court was 121 to 151 months. It nevertheless opposes Lopez's motion.

Before addressing the reasons for the Court's conclusion that Lopez has demonstrated extraordinary and compelling reasons for a sentence reduction, the Court considers and will reject his argument that his sentence ought to be reduced because the Guidelines range has been amended and lowered. 18 U.S.C. § 3582(c)(2). That argument fails because it would require a recalculation of a Guidelines enhancement that was unaffected by the amendment, which is not permitted under controlling precedent.

BACKGROUND

On May 15, 2012, Lopez pled guilty pursuant to a plea agreement to conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. (Doc 220). The plea agreement stipulated that Lopez was a career offender pursuant to U.S.S.G. § 4B1.1(a). (Presentence Report ("PSR") ¶ 3). The PSR prepared by the Probation Department, utilizing the Guidelines Manual effective November 1, 2011, likewise determined that Lopez qualified as a career offender. (PSR ¶ 80). At sentencing, the government and Lopez did not object to this calculation, and the Court adopted the Guidelines range in the PSR. (Sentencing Tr. at 3–4; Doc 302).

To be designated as a career offender under the Guidelines, among other requirements, a defendant must have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Lopez's career offender designation was based on his felony convictions under New York state law for robbery in the first degree and criminal possession of a narcotic drug in the fourth degree. (PSR ¶ 80). Lopez and the government now agree that one of these predicate offenses, criminal possession of a narcotic drug in the fourth degree, does not -- and did not at the time -- constitute a "controlled substance offense."

The term "controlled substance offense" includes a conviction that prohibits "the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G § 4B1.2(b). Under the language of section 4B1.2(b) and Second Circuit precedent, "simple possession of narcotics" was not considered a controlled substance offense. United States v. Pearson, 77 F.3d 675, 676 (2d Cir. 1996) (citing N.Y. Penal Law § 220.09 ).¹ The PSR described nothing more than "possession of a quantity of a controlled substance." (PSR ¶ 123). The government now does not dispute that one of the two predicate offenses was never premised on more than simple possession. At his October 10, 2012 sentencing, the Court sentenced Lopez principally to a term of 180 months’ imprisonment, 82 months below the bottom of the advisory Guidelines range that it had adopted. If Lopez's Guidelines were calculated without the career offender enhancement, he would have had an offense level of 29 and a criminal history category of IV. (PSR ¶¶ 79, 132). This would have resulted in a Guidelines range of 121 to 151 months’ imprisonment.

Lopez did not file a direct appeal. On March 21, 2016, Lopez sought a sentence reduction pursuant to 18 U.S.C § 3582(c)(2). (Doc 457). The Court denied Lopez's motion because "the guidelines range used in the defendant's original sentencing was based on his status as a Career Offender ... rather than the amount of drugs involved in the offense." (Doc 490). Lopez subsequently moved to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he was not a career offender because he was not convicted of a predicate "crime of violence." (Doc 465). The Court denied Lopez's habeas petition on May 9, 2017. (Doc 503).

The Court has heard the parties orally and in writing on Lopez's present motion.

DISCUSSION

I. Lopez's Motion for Sentence Reduction Under Section 3582(c)(2) Is Denied.

The Court's discretion to reduce a sentence under section 3582(c)(2) is limited.

Under the provision, "[a] defendant is eligible for a sentence reduction if he was ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission’ and ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ " United States v. Jarvis, 883 F.3d 18, 21 (2d Cir. 2018) (quoting 18 U.S.C. § 3582(c)(2) ); see also Dillon v. United States, 560 U.S. 817, 826–27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (explaining that "step one" under the section 3582(c)(2) analysis requires that the court determine "the prisoner's eligibility for a sentence modification"). The applicable policy statement is section 1B1.10 of the Guidelines. United States v. Zapatero, 961 F.3d 123, 127 (2d Cir. 2020). Under section 1B1.10(b)(1), a district court must "determine the amended guideline range that would have been applicable to the defendant" had the relevant amendment been in effect at the time of the initial sentencing, and "shall leave all other guideline application decisions unaffected." The scope of sentence modification authorized under § 3582(c)(2) is "narrow" and not a "plenary resentencing." Dillon, 560 U.S. at 826, 130 S.Ct. 2683.

Lopez seeks a modified sentence under 18 U.S.C. § 3582(c)(2) based on retroactive application of Amendment 782 to the Guidelines, which lowered the base offense level for certain categories of drug-related offenses. As the Court previously explained in Lopez's first section 3582(c)(2) motion, because Lopez was sentenced as a career offender, solely applying Amendment 782 would not have the effect of lowering his applicable Guidelines range. (Doc 490, at 1–2); see United States v. Walker, 702 F. App'x 13, 14 (2d Cir. 2017) ("For career offenders, the guideline range determined before consideration of any departure or variance is the career offender range, and hence career offenders are not eligible for a reduction even where the otherwise applicable drug guidelines ranges were lowered."); United States v. Suarez, 633 F. App'x 562, 563 (2d Cir. 2016) (citing United States v. Mock, 612 F.3d 133, 138 (2d Cir. 2010) (per curiam) and United States v. Martinez, 572 F.3d 82, 84–85 (2d Cir. 2009) ).

In his current motion, Lopez urges that the Court should refrain from applying the career offender designation and calculate his amended guidelines range under the applicable drug quantity guidelines. This Court recently rejected a similar argument made by one of Lopez's co-defendants in United States v. Marrero, stating that:

Adoption of [defendant's] argument would require the Court to alter a Guidelines application that was not affected by Amendments 782 and 788. The Sentencing Commission's Application Note makes plain that a sentence should not be reduced if the new Guideline reduction would not have affected the defendant's Guideline range. U.S.S.G. § 1B1.10 Application Note 1(a). This is also inconsistent with the narrow scope of relief provided by section 3582(c)(2), authorizing only "a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Dillon, 560 U.S. at 826 [130 S.Ct. 2683].

11-cr-568 (PKC), 2020 WL 7079483, at *2 (S.D.N.Y. Dec. 3, 2020).

Although Lopez was improperly deemed a "career offender" at the time of his sentencing, in the context of section 3582(c)(2), the Court concludes that he is not eligible for a sentence reduction. In United States v. Mock, defendant's section 3582(c)(2) motion contended that the district court erred at his original sentencing by failing to state on the record factual findings supporting the application of the career offender enhancement.

612 F.3d at 135–36. Defendant urged the district court to address this "procedural error" and reconsider his designation as a career offender. Id. The Second Circuit concluded that Dillon prevented a defendant from "seek[ing] to attribute error to the original, otherwise-final sentence in a motion under [ section 3582(c)(2) ]." Id. at 138. "[R]egardless of whether there is merit to defendant's argument that the district court committed procedural error when it applied the career offender Guideline at his original sentencing, neither the district court nor this Court is authorized to consider that contention in the context of a motion pursuant to 18 U.S.C. § 3582(c)(2)." Id. (emphasis added).

Lopez urges that the procedural error in his case is significantly more serious than defendant's alleged...