UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 27, 2011
UNITED STATES OF AMERICA,
JORGE CINTRON, DEFENDANT.
The opinion of the court was delivered by: Pollak, J.
Jorge Cintron has filed two motions challenging his federal sentence of 30 years imprisonment which was issued in 1991, as well as a motion for the appointment of counsel.*fn1 For the following reasons, Cintron's motions will be denied.
In March 1990, a federal jury convicted Cintron of various charges related to possessing and distributing cocaine. See Docket No. 190, at 1--2. On August 27, 1991, this court sentenced Cintron to 30 years incarceration to be served consecutive to a life sentence imposed by a Pennsylvania state court. Id. at 2. At the time, the sentence guideline range for Cintron's offenses was 30 years to life imprisonment, id., and the court was obligated to impose a sentence within the guideline range, see 18 U.S.C. § 3553(b) (1991).
On January 3, 2008, Cintron submitted a motion for reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. See Docket No. 178. On February 24, 2011, Cintron submitted a second motion for reduction of sentence invoking the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372 (2010). See Docket No. 182. On January 3, 2008, Cintron also filed a motion for appointment of counsel. See Docket No. 179.
Motions for Reduction of Sentence
In support of his first motion for reduction of sentence, Cintron argues that the Supreme Court's recent decisions in Booker and its progeny have given federal judges more discretion when imposing sentences. See United States v. Booker, 543 U.S. 220, 250, 259 (2005) (holding that the Federal Sentencing Act's provision which created mandatory minimums was unconstitutional). Cintron is right that these decisions have allowed judges more discretion at the sentencing stage than was permitted when he was sentenced. See, e.g., Kimbrough v. United States, 552 U.S. 85, 91, 111 (2007) (affirming a sentence that was below the minimum guideline sentence). However, the Third Circuit Court of Appeals has held that Booker does not apply retroactively. See Lloyd v. United States,407 F.3d 608, 615--16 (3d Cir. 2005). Thus, the court has no authority under Booker or its progeny to revisit Cintron's sentence.
The court is also unable to offer Cintron relief under Rule 35. Under the current version of Rule 35(a),*fn2 a district court may "correct a sentence that resulted from arithmetical, technical, or other clear error" within 14 days of sentencing. Because Cintron's sentence was imposed 20 years ago, the court may not grant him relief under Rule 35(a). See United States v. Miller, 594 F.3d 172, 182 (3d Cir. 2010). Rule 35(b) allows for a sentence reduction upon motion by the government if the defendant has provided the government with new and substantial assistance. Since no such motion has been filed in this case, the court cannot provide Cintron relief under Rule 35(b).
The version of Rule 35 in place at the time of Cintron's sentencing in
1991 also would not afford Cintron the relief he requests.*fn3
Under Rule 35(a), a district court was able to correct or
reduce a sentence on remand from an appeal. Under Rule 35(b), a
district court "on motion of the Government, may within one year after
the imposition of
a sentence, lower a sentence to reflect a defendant's subsequent,
substantial assistance in the investigation or prosecution of another
person who has committed an offense." Because this case is not on
remand from the court of appeals, and the government has not filed a
motion to reduce Cintron's sentence, the prior version of Rule 35 does
In his second motion for reduction of sentence, Cintron repeats many of the arguments in his first motion. His one new argument is that he is entitled to relief under the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (FSA), which "replaced the 100-to-1 crack to powder cocaine sentencing ratio with an 18-to-1 ratio."*fn4
Docket No. 182 ¶ 10.
The FSA reduced mandatory minimum prison terms in certain circumstances, including violations involving crack cocaine. FSA § 2(a)(2). The FSA is not helpful to Cintron because the Third Circuit has held that it may not be applied retroactively to resentence an inmate. See United States v. Reevey, 631 F.3d 110, 111 (3d Cir. 2010) (holding that the FSA may not "be applied retroactively to authorize the District Court to impose a sentence below the prescribed mandatory minimum prison term in effect at the time the [defendants] were sentenced").
Motion for Appointment of Counsel
In support of his motion for appointment of counsel, Cintron argues that "the issue[s] he is presenting to this Court have merit, in accordance to the recent determination made by the United States Supreme Court, allowing discretionary power to the sentencing court to reconsider the sentence imposed." Docket No. 179 ¶ 4. The Third Circuit has held that when faced with a motion for appointment of counsel, a district court must first determine whether a movant's "claim has arguable merit in fact and law." Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). As explained above, the court lacks the ability to "reconsider" Cintron's sentence because the requirements for Rule 35 are not satisfied, Booker is not retroactive, and the FSA is not applicable to this case. Because the court finds Cintron's motions do not have arguable merit in fact or law, Cintron's motion for counsel will be denied.
For the reasons presented above, it is hereby ORDERED that: (1) the defendant's motions for reduction of sentence (Docket Nos. 178; 182) are DENIED with prejudice; (2) the defendant's motion for appointment of counsel (Docket No. 179) is DENIED without prejudice; and (3) the defendant's motion to execute the proceedings (Docket No. 178) is DISMISSED as moot.
BY THE COURT:
Louis H. Pollak Pollak, J.