The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION FOR REDUCTION IN SENTENCE
I. Facts and Procedural History
In July 1998, Defendant, Reinaldo Rosario, was charged in an indictment with conspiracy to distribute more than 50 grams of crack cocaine and more then one kilogram of heroin in violation of 21 U.S.C. § 846 (Count 1) and with criminal forfeiture, pursuant to 21 U.S.C. § 853 (Count 11). (Pre-Sentence Report ("PSR") at 1). These charges arose from Defendant's alleged involvement in a drug distribution organization in North Philadelphia from May 1996 through June 1998. (Id. at 1-2). Defendant was also an alleged leader of this organization, in control of the crack sales. (Id. at 2). Although Defendant had been arrested in April 1997 on an unrelated homicide charge, according to testimony of a cooperating witness, Defendant continued to run the organization from prison through June 1998. (Id. at 6).
Defendant pled guilty to the charge of conspiracy on November 10, 1998. (Id. at 1). He was sentenced on January 26, 2001, at which time the District Court adopted the sentence recommended by the Probation Department in its Pre-Sentence Report. The PSR indicated that approximately 16.8 kilograms of cocaine base (crack cocaine) was attributable to Defendant and that, as a result, Defendant's base offense level was 38 under § 2D1.1(a)(3) of the United States Sentencing Guidelines ("U.S.S.G.").*fn1 (Id. at 11). Pursuant to § 2D1.2(a)(1), two points were added because the offense occurred near a protected location. (Id. at 12). An additional two points were added pursuant to § 2D1.1(b)(1) because two members of the organization were found in possession of a dangerous weapon, and another four points were added under § 3B1.1(b) because Defendant was the founder, organizer, and leader of the conspiracy. (Id.). After subtracting two points for acceptance of responsibility under § 3E1.1(a), the Probation Department found Defendant to have a total offense level of 42. (Id.).
According to the PSR, Defendant had several prior convictions, two of which involved controlled substances, and Defendant committed the instant offense while on probation. (Id. at 13-14). Under 21 U.S.C. § 841(b)(1)(A), if an individual violates that statute "after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release." As such, the Probation Department noted that Defendant was subjected to a statutory mandatory term of life imprisonment, regardless of his offense level under the Guidelines. (PSR at 17-18). Defendant was sentenced to life imprisonment on January 26, 2001.
On April 20, 2009, Defendant filed a "Motion Under Title 18 § 3582(c)(2) and Sentencing Guideline § 1B1.10," with an attached Memorandum. (Doc. 538). In that Motion and Memorandum Defendant made several arguments as to why this Court should reconsider his sentence.
First, Defendant asserts that he should not have been given the two point enhancement for possession of a dangerous weapon because the possession of his co-conspirators should not be attributed to Defendant. Second, Defendant argues that the sentencing court was unreasonable in considering Defendant's participation in the conspiracy through 1998; Defendant disputes that he continued to participate in the organization after his arrest on the homicide charge.
Finally, Defendant requests this Court reconsider the sentence based on the decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007). Defendant argues that since the Court has discretion to follow the Guidelines, this Court should take into account the sentencing disparity between crack cocaine and powder cocaine and revise the sentence accordingly.
Defendant brought his motion under 18 U.S.C. § 3582. Section 3582(c)(2) provides:
[I]n 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)..., 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.
Thus, for Defendant to be eligible for a reduction, his sentence must be "based on" a sentencing range that was subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Importantly, U.S.S.G. § 1B1.10 identifies the Amendments that may be retroactively applied pursuant to the authority granted in § 3582(c)(2).
In his § 3582 Motion, Defendant did not actually identify a particular amendment to the Guidelines that would entitle him to a lower sentence. However, the Sentencing Commission recently amended the Guidelines to adjust the base offense levels for offenses involving crack cocaine, the type of offense for which Defendant was sentenced. This Court will therefore treat Defendant's motion as a request for reduction based on those amendments. The Sentencing Commission added those Amendments, 706 and 715, to the list in § 1B1.10, effective March 3, 2008 and May 1, 2008 respectively. As a ...