RULING ON DEFENDANT'S PRO SE MOTION FOR REDUCTION OF SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)

HAIGHT, Senior District Judge:

I. INTRODUCTION

Defendant Amador Rivera, a federal prisoner, brings the pending pro se motion seeking reduction of his sentence, pursuant to 18 U.S.C. § 3582(c)(2), which authorizes the court to reduce a sentence that is "based on a sentencing range that has been subsequently lowered by the Sentencing Commission." Specifically, Rivera bases this motion on Amendment 750 to the Sentencing Guidelines, effective November 1, 2011, which lowered the base offense levels applicable to cocaine base ("crack") offenses.1 For the reasons set forth below, the Amendment does not apply to Rivera's case in that his sentence on his narcotics distribution charges was not based on a guidelines calculation premised on cocaine base. Moreover, even if the Court were to apply the Amendment, it would not lower Rivera's overall guideline range for his convictions. His other violent predicate acts would still result in a combined base offense level of 43, the highest level under the guidelines.

In brief, Rivera was convicted on four charges: Count One for drug conspiracy (Act One) and conspiracy to murder Latin Kings (Act Four) under RICO, 18 U.S.C. § 1962(c); Count Two (RICO conspiracy), 18 U.S.C. § 1962(d); Count Ten (Conspiracy to Murder Latin Kings), 18 U.S.C. § 1959(a)(5); and Count Thirty-Four (Hudson Street Drug Conspiracy), 21 U.S.C. §§ 846 and 841(a)(1).

As the Government argues in summary, putting aside the guidelines calculations relating to Conspiracy to Possess with Intent to Distribute Controlled Substances (Count 34) and the related drug conspiracy acts in the RICO counts of Rivera's conviction (Counts One and Two), the guidelines calculations applicable to Rivera's predicate acts in the RICO counts related to Conspiracy to Murder Latin Kings (Counts One, Two, and Ten) independently call for a sentence of more than the statutory maximum of twenty years per count — "indeed, more than the total effective Amended sentence of 480 months that was imposed by the Court [Dorsey, J.] pursuant to its January 15, 2003, Ruling on ... a Rule 59, Fed. R. Civ. P., motion" to alter judgment. Doc. 2535 (discussing Doc. 2277). By cross-reference to first-degree murder, United States Sentencing Guideline ("U.S.S.G.") § 2A1.1, Rivera's combined base offense level for his four offenses was 43, the highest such level under the Sentencing Guidelines. That base offense level, combined with Rivera's criminal history category of V, would permit the imposition of a maximum life sentence where the convictions in Counts One and Two included the "racketeering activity" of conspiracy to murder.

II. PROCEDURAL BACKGROUND

In United States v. Jorge Rivera, et al., No. 3:94CR223 (PCD), a racketeering action involving over thirty-six defendants, Amador Rivera was charged in Counts One, Two, Ten, Eleven and Thirty-Four of the Third Superceding Indictment. Following a full trial on the merits, Rivera was convicted on Count One (Racketeering/RICO, 18 U.S.C. § 1962(c)); Count Two (Racketeering/RICO Conspiracy, 18 U.S.C. § 1962(d)); Count Ten (Violent Crimes in Aid of Racketeering Activity ("VCAR") — Conspiracy [to Murder Latin Kings], 18 U.S.C. § 1959(a)(5)); and Count Thirty-Four (Conspiracy to Distribute Controlled Substances, 21 U.S.C. § 846). The jury was not able to reach a verdict on Count Eleven (VCAR-Murder [Angel Serrano]), 18 U.S.C. § 1959(a)(1), and a mistrial was declared as to that count. Thereafter, the Court (the late Honorable Peter C. Dorsey, then Chief Judge) imposed a total effective sentence on Rivera of life imprisonment, a term of 5 years' supervised release, and a mandatory $400 special assessment.2

Rivera appealed his conviction and his sentence. The Second Circuit, by Summary Order dated September 14, 1999, affirmed both. See United States v. Rivera, No. 96-1752. On October 15, 1999, the mandate of the Second Circuit was issued. Doc. 2119. Rivera thereafter applied for a writ of certiorari from the United States Supreme Court, but the application was denied. See Rivera v. United States, 528 U.S. 1130, 120 S.Ct. 968, 145 L.Ed.2d 839 (2000).

On February 4, 2000, Rivera filed a motion for modification of his sentence [Doc. 2128]; and on March 1, 2000, that motion was denied [Doc. 2138]. On January 17, 2001, Rivera filed a motion to vacate his sentence under 28 U.S.C. § 2255 [Doc. 2187], which was denied on April 6, 2001 [Doc. 2206]. On April 19, 2001, Rivera filed a "Letter Motion" [Doc. 2211], seeking reconsideration of the denial of his § 2255 motion. The Court granted reconsideration on that same date [Doc. 2212].

After becoming fully briefed, the reconsidered motion to vacate [Doc. 2187-1] remained pending for a number of months because the Court (Dorsey, J.) reserved judgment while awaiting the Second Circuit's decision on his prior rulings in Parise v. United States, 117 F.Supp.2d 204 (D.Conn.2000) and 135 F.Supp.2d 345 (D.Conn.2001). The Second Circuit filed the awaited decision on November 18, 2002. See United States v. Luciano, 311 F.3d 146 (2d Cir.2002) (sub.nom.).3

Judge Dorsey then ruled on the motion to vacate [Doc. 2187-1]. Citing Luciano, he explained that "Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] requires that a sentence not exceed the maximum allowed by statute unless facts that may permit a more severe maximum sentence, such as drug quantity, are found by a jury beyond a reasonable doubt." Rivera v. United States, Nos. Cr. 3:94CR223 (PCD) & Civ. 3:01CV76 (PCD), 2003 WL 22359252, at *2 (D.Conn. Jan. 14, 2003) (citing Luciano, 311 F.3d at 151). Rivera had argued that the life sentences imposed upon him violated Apprendi as requisite facts pertinent to his sentence (i.e., the quantity of drugs at issue) were not found beyond a reasonable doubt by the jury. Id. Rejecting the Government's argument that Apprendi should not be applied retroactively, the Court vacated its prior rulings, thereby granting Rivera's previously filed motions to alter sentence [Doc. 2206] and to vacate under 28 U.S.C. § 2255 [Doc. 2187] pursuant to Rule 59, Fed.R.Civ.P.4 2003 WL 22359252, at *2. Judge Dorsey altered Rivera's sentence, lowering that sentence to correspond to "possession of an unspecified amount of cocaine," as follows:

Id., at *3.5

As the Probation Office later pointed out in its "Retro-crack Addendum," under his resentencing on January 15, 2003, Rivera's effective sentence of forty years was a non-guidelines sentence in that "under § 5G1.2(d), his guideline sentence would be 70 years in total [20 plus 20 plus 10 plus 20, for the four counts]." Doc. 2533-3, p. 1. In light of the guideline range of life imprisonment, the guidelines dictated that the sentences on the multiple counts at issue "shall run consecutively," rather than concurrently. See U.S.S.G. § 5G1.2(d). Although not explicitly stated in the Amended Judgment, Judge Dorsey's imposition of a 40-year sentence was a substantial downward departure in Rivera's favor.

In the intervening period from Judge Dorsey's January 2003 Ruling until November 2011, Rivera filed forty-six motions, pleadings, requests for relief, and applications.6 Included in those filings was a March 11, 2008 letter in which Rivera moved for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense [Doc. 2431] — i.e., reduction of his sentence on Count Thirty-Four, conspiracy to distribute controlled substances. On September 17, 2008, Judge Dorsey denied this application, holding that Rivera was not eligible for relief because he had been sentenced to the mandatory minimum term of twenty (20) years imprisonment on Count Thirty-Four.7

On November 11, 2011, Rivera executed the pending pro se motion to reduce his sentence based on the amended U.S.S.G. § 1B1.10 policy statement, regarding retroactive application of the new crack guidelines (a/k/a "Amendment 750"). In response to this motion, on November 18, 2011, the United States Probation Office filed a "Retro-Crack Addendum" to Rivera's Pre-Sentence Report ("PSR") [Doc. 2533], addressing the issue of whether Rivera's sentence is eligible for retro-crack reduction and concluding that it was not. The Government agreed with the Probation Office's Addendum and thus filed an opposition to Rivera's motion for a retro-crack reduction in his sentence under Amendment 750. As set forth below, this Court, to which the case has been transferred [Doc. 2543] upon Judge Dorsey's passing, concurs that Rivera's sentence is indeed not eligible for reduction.

III. DISCUSSION

A. 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10

Rivera presently moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). That statutory provision, captioned "Modification of an imprisoned term of imprisonment," states in pertinent part:

The Sentencing Commission's applicable policy statement appears in U.S.S.G. § 1B1.10(a), which provides that where "the guideline range applicable to [a defendant serving a term of imprisonment] has subsequently been lowered as a result of an amendment to the Guidelines Manual..., the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)."8 The same subsection is explicit, however, that "[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if ... [the guidelines amendment] does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added).

In general, § 1B1.10 of the Sentencing Guidelines identifies amendments which may be applied retroactively pursuant to § 3582(c)(2) and the proper procedures for implementing said amendments.9 To determine whether a reduction of sentence is warranted in a specific case, the district court must first "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. § 1B1.10(b)(1). The court must then calculate the amended guideline range by substituting the amended offense level of § 2D.1.1(c), but "shall leave all other guideline application decisions unaffected." Id.

The United States Supreme Court has held that the process for applying a retroactive guideline amendment set forth in § 1B1.10 is binding, such that "[a]ny reduction must be consistent with applicable policy statements issued by the Sentencing Commission." Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 2688, 177 L.Ed.2d 271 (2010). Pursuant to 18 U.S.C. § 3582(c)(2), the Court must first "follow the Commission's instructions in § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized." Dillon, 130 S.Ct. at 2691. In particular, § 1B1.10(b)(1) requires the Court to 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.10 Id. Then, "[a]t step two of the inquiry, § 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case." Id. at 2692. The Supreme Court also emphasizes the limited action permissible by the Court in making such a sentence reduction, specifying that "§ 3582(c)(2) authorizes only a limited adjustment to an otherwise final sentence." Id. at 2691.

B. Amendment 750

In the case in suit, the amendment Rivera cites in his request for a reduced sentence is part A of Amendment 750. That amendment modified the offense levels in Sentencing Guidelines § 2D1.1 — those applicable to crack cocaine offenses.11 The Sentencing Commission added that this amendment to § 1B1.10(c) is a retroactive amendment.

Rivera's original sentence on December 5, 1996, was based on the sentencing guideline range related to the amount of cocaine (i.e., powder cocaine) at issue and not of cocaine base (i.e., crack). U.S.S.G. § 2D1.1(c)(3). Because the calculations were premised on the guideline for the relevant quantity of cocaine, and not of any additional crack Rivera distributed or sold, Amendment 750 provides no basis upon which to lower the applicable sentencing guideline range for Rivera's charges.

Specifically, Rivera's guideline range was calculated based on findings that the primary controlled substance involved was cocaine, as opposed to cocaine base or "crack." The quantity of cocaine attributable to Rivera was 15 to 50 kilograms. See Probation Office's "Retro-Crack Addendum," Doc. 2533, p. 1 ("It is noted that the Court found that the defendant's relevant conduct under U.S.S.G. § 1B1.3 involved at least 15 but less than 50 kilograms of cocaine.") (emphasis in original). See also PSR (Doc. 2533-2), ¶ 19 ("Based upon the Government's information, it is conservatively estimated that the Hudson Street Drug Conspiracy involved at least 15 kilograms but less than 50 kilograms of cocaine.")(citing and applying U.S. S.G. § 2D 1.1(c)(3) to find base offense level of 34); Sentencing Transcript (12/5/96) at 14, 20, 35. Judge Dorsey's formal "Statement of Reasons" ("SOR") for imposing Rivera's sentence explicitly provides that the Court "adopt[ed] the undisputed factual statements contained in the PSR," Doc. 2533-4, ¶ 1 (Findings of Fact), and found that "the drug amount is accurately calculated at at least 15 kilograms of cocaine ....," id., at 3.12 The Court applied the guideline range pertaining to 15 kilograms of cocaine, finding that such estimate "is not unreasonable in light of the daily amount of money taken in as drug sales proceeds." Id. (emphasis added).13

When Judge Dorsey resentenced Rivera on January 15, 2003, he once again referred to "cocaine" as the relevant substance at issue, as opposed to crack. Furthermore, he concluded that, absent "a jury finding as to the quantity of drugs beyond a reasonable doubt which would permit a sentence higher than the maximum for simple possession of an unspecified amount of drugs," the sentence he would impose for "a violation involving cocaine" in Count Thirty-Four would "not exceed the maximum sentence in 21 U.S.C. 841(b)(1)(C) of twenty years." 2003 WL 22359252, at *3 (emphasis added) (citing United States v. Burrell, 289 F.3d 220, 224-25 (2d Cir.2002)). He essentially discounted the actual amount of cocaine at issue and re-sentenced on the basis of an "unspecified amount of drugs." See 21 U.S.C. § 841(b)(1)(C) ("In the case of a controlled substance in schedule ... II [which includes cocaine], ... such person shall be sentenced to a term of imprisonment of not more than 20 years ...").

Because the controlled substance used to calculate Rivera's sentence was again powder cocaine, as opposed to cocaine base or crack, Amendment 750 provides no lawful basis to reduce his sentence. Pursuant to 18 U.S.C. § 3582(c)(2), a defendant's sentence may only be reduced if he or she was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." See e.g., United States v. Korbe, 518 Fed.Appx. 97, 98 (3d Cir.2013) (affirming district court's order denying federal prisoner's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) because prisoner's "240 month statutory mandatory minimum sentence was independently based on his powder cocaine offenses;" "Amendment 750 could not have the effect of lowering Korbe's applicable Guidelines range because the mandatory minimum for his powder cocaine conviction was unaffected by that amendment."). See also United States v. Bates, No. 06 CR 580(DRH), 2013 WL 1820907, at *3 (E.D.N.Y. April 30, 2013) ("When a defendant's sentence `was not based on the crack cocaine guidelines,' that defendant is `ineligible for a sentence reduction.'") (quoting United States v. McPherson, 435 Fed.Appx. 17, 18 (2d Cir. 2011), cert. denied, ___ U.S. ___, 133 S.Ct. 1303, 185 L.Ed.2d 229 (2013)); United States v. Britt, No. 04 Cr. 67(RMB), 2012 WL 3834630, at *2 (S.D.N.Y. Aug. 15, 2012) ("Defendant was not sentenced under the crack cocaine guidelines and he is, therefore, not eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)."). See also United States v. Milton, No. 4:07cr18-RH, 2012 WL 3537024, at *2 (N.D.Fla. Aug. 14, 2012) ("Amendment 750 does not authorize a sentence reduction for a person whose guideline range has not been lowered.").

C. Overall Sentencing Guideline — Combined Base Offense Level

Finally, even if this Court were to apply Amendment 750 to defendant's controlled substance offenses (Counts One, Two and Thirty-Four), his overall guideline range would remain unchanged due to his relevant conduct or predicate acts with respect to Conspiracy to Murder Latin Kings in Counts One, Two, and Ten. As set forth in the PSR, ¶ 26, under U.S.S.G. § 1B1.3 by cross reference to U.S.S.G. § 2A1.1 (the guideline for First Degree Murder), the base offense level for this separate conduct of conspiracy to murder was 43, the highest base offense level under the Sentencing Guidelines. Judge Dorsey made a specific finding that the base offense level was 43. Doc. 2533-4, p. 5. Combined with Rivera's criminal history level of V, Rivera was subject to a maximum sentence of life imprisonment on the RICO conspiracy charges in Counts One and Two, 18 U.S.C. § 1962(c, d).14

The Sentencing Guidelines establish a guideline range for each defendant. That range is based on the defendant's "total offense level" and "criminal history category." The total offense level is based on the defendant's "base offense level" with increases or decreases based on specific offense characteristics.15

In the case at bar, the Court adopted the Probation Office's grouping of Rivera's offenses into two groups. Group One included the counts relating to the distribution of narcotics: Count One (Racketeering Act 1C (drug conspiracy)); Count Two (RICO conspiracy), 18 U.S.C. § 1962(d); and Count 34, 18 U.S.C. § 1962(c), 21 U.S.C. §§ 846 and 841(a)(1). The base level for that group was first calculated as 34 with respect to the amount of kilograms of cocaine involved in these offenses (15 to 50 kilograms).16 Doc. 2533-2, p. 15 (citing § 2D1.1(c)(3) (which establishes base offense level of 34 for offenses involving at least 15 kilograms but less than 50 kilograms of cocaine)). Additional points were included for Rivera's "aggravating role as a manager or supervisor" in the crimes (3 points). Id., p. 15 (citing U.S.S.G. § 3B1.1(b)). The total base offense level for Group One was thus 37. Id.

Group Two consisted of the counts relating to conspiracy to murder: Count One (Racketeering Act 4, conspiracy to murder Latin Kings); Count Two (RICO conspiracy), 18 U.S.C. § 1962(d); and Count Ten, 18 U.S.C. § 1959(a)(5). The base level for Conspiracy to Murder is guided by § 2E1.3 of the Guidelines, which establishes a base level of 12 or "the offense level applicable to the underlying crime or racketeering activity." Where the underlying offense was Conspiracy to Murder Latin Kings and Associates, § 2A1.5(c) governed, which dictates that "[i]f the offense resulted in the death of a victim, apply § 2A1.1 (First Degree Murder)." In Rivera's case, a a victim, Angel Serrano, actually died as a direct result of the conspiracy to murder.17 The base level for First Degree Murder is 43. U.S.S.G. § 2A1.1(a). Thus, by cross reference to § 2A1.5(c), the base offense level for Group Two was 43. Rivera was also subject to a 2 point enhancement for his role as a "manager or supervisor of a criminal activity involving five or more participants." Doc. 2533-2, p. 16 (citing U.S.S.G. § 3B1.1(c)). His total adjusted offense level for Group Two was thus 45.

Finally, when combined and adjusted per U.S.S.G. § 3D1.4, Groups One and Two yielded a combined adjusted base level of 46.18 Doc. 2533-2, p. 16. The Court, however, adopted level 43 as the maximum offense level authorized by the Sentencing Guidelines. Id., p. 17 (¶ 38); Doc. 2533-4, p. 3.19

Next, Rivera's criminal history category was calculated based on his prior convictions. Based on a total of 12 criminal history points, Rivera had a criminal history category of V. Doc. 2533-2, (PSR), p. 19 (¶ 19).20 The Court explicitly adopted V as the applicable criminal history category for Rivera. Doc. 2533-4, p. 4. Under U.S.S.G. § 1B1.3, regarding the relevant conduct in Counts One, Two and Ten, the maximum term of imprisonment on Counts One and Two was life imprisonment.21 See Doc. 2533 (Retro-Crack Addendum), p. 1.

At Rivera's original sentencing, Judge Dorsey adopted the Probation Office's findings that "the VCAR offense is ultimately governed by § 2A1.1" and thus held that "the offense level is ... level 43." Doc. 2533-4, p. 3. He consequently sentenced Rivera to life imprisonment on Counts One and Two. Id., p. 4.

When Rivera was resentenced on January 15, 2003, the Court made reference to Connecticut's state statutes regarding conspiracy to murder, Conn. Gen.Stat. §§ 53a-48 and 53a-54a, to conclude that "an attempt or conspiracy to commit a class A felony [murder] is a class B felony." Applying Connecticut law, because the maximum sentence for a Class B felony was twenty years, the Court lowered Rivera's sentence from life to twenty years. 2003 WL 22359252, at *3. However, as the Government correctly pointed out in its response, with respect to the Court's rationale for lowering Rivera's sentence on Counts One and Two (Conspiracy to Murder Latin Kings), Rivera "was not being sentenced under those state statutes, but rather he was being sentenced for RICO and RICO Conspiracy offenses that involved a racketeering enterprise that had not only conspired to murder multiple people, but in fact had done so." Doc. 2535, p. 13 n. 16. Therefore, the "proper calculation of the defendant's sentencing guideline range [continued to] exceed[] the 20 year statutory maximum cited by the Court and, indeed, called for a sentence of life imprisonment." Id., p. 13.22

In sum, Rivera's convictions for the offenses in Counts One, Two and Ten included conspiracy to murder Latin Kings, some of whom were actually murdered by Rivera's fellow conspirators. As set forth in the PSR at ¶ 26, the base offense level for this conduct, resulting in the death of one or more victims, was 43, the highest base offense level calculus under the Sentencing Guidelines.

Pursuant to 18 U.S.C. § 3582(c)(2), a defendant's sentence may only be reduced if he was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."23 Here, even if Amendment 750 were applicable to Rivera's sentence, applying to sale or possession of cocaine base or crack instead of cocaine powder, his combined and overall sentencing guideline range for his offenses would not be lowered. As the Government asserts, that "overall guideline range would remain unchanged because of [Rivera's] conviction for conduct relating to the Conspiracy to Murder Latin Kings," and would still result in a combined base level of 43 and a potential maximum sentence of "life imprisonment."24 Doc. 2535, p. 14. See, e.g., U.S. v. Rodriguez-Reyes, 714 F.3d 1, 16 (1st Cir.2013) (upholding district court's application of first-degree murder cross-reference to defendant convicted of conspiracy with intent to distribute narcotics, 21 U.S.C. §§ 841 and 860, where defendant engaged in predicate acts of planning to murder a rival and masterminding 3 related shooting deaths).25

In sum, a reduction in Rivera's term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with the policy statement in § 1B1.10 because Amendment 750, "if applicable to the defendant, ... does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision." U.S.S.G. § 1B1.10, Commentary captioned "Application Notes," at n. 1(A). Put simply, eligibility for a reduced sentence is only triggered when the amendment lowers the guideline range (i.e., the guideline range that corresponds with the offense level and criminal history category determined pursuant to § 1B1.1(a), which in turn is determined before consideration of any departure provision in the Guidelines Manual or any variance). Id. (emphasis added). Here, the amendment does not lower Rivera's applicable guideline range due to the operation of another guideline or statutory provision, which was related to his predicate acts of conspiracy to murder. See U.S.S.G. §§ 2E1.3, 2A1.5(c), and § 2A1.1.

IV. CONCLUSION

For all of the foregoing reasons, Rivera's pro se motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) [Doc. 2532] is DENIED. Rivera is ineligible for a reduced sentence under Amendment 750. The Clerk of the Court is respectfully directed to serve Rivera with a copy of this Ruling.

It is SO ORDERED.