United States District Court, D. Connecticut
R. Underhill, United States District Judge
DeJesus is currently incarcerated as a result of his 2002
conviction for conspiracy to distribute controlled
substances, in violation of 21 U.S.C. § 846. He is
currently serving a sentence of 340 months’
imprisonment and has, inter alia, asked me to reconsider my
ruling denying his motion for a reduction of sentence. For
the forgoing reasons, his requests are denied.
April 2, 2002, DeJesus was convicted of two counts of
conspiracy to distribute a controlled substance, in violation
of 21 U.S.C. § 846. He was thereafter sentenced to a
term of life imprisonment. In accordance with United
States v. Crosby, 397 F.3d 103 (2005), DeJesus was
resentenced on July 19, 2005, to a term of 340 months’
imprisonment and a term of supervised release of five years.
On March 19, 2009, DeJesus filed a motion for reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2).
DeJesus’ motion was based on Amendment 706 to the U.S.
Sentencing Guidelines, which had the effect of lowering the
base offense level for offenses involving crack cocaine by
two levels. On June 30, 2009, I denied DeJesus’ motion
for a sentence reduction (doc. # 1654). I held that he was
not eligible for the reduction because Amendment 706 did not
have the effect of reducing DeJesus’ total offense
level below a level 43, and therefore did not have the effect
of lowering DeJesus’ applicable Guideline range.
See U.S.S.G. § 1B1.10(a)(2) (2008); see
also U.S.S.G. § 1B1.10 Appl. Note 1. (A) (2008).
August 31, 2009, and then again on May 4, 2010, DeJesus filed
motions for reconsideration of my Order denying the motion
for reduction of sentence (see docs. # 1658, 1665).
In those motions, he argues that it was error for me to treat
U.S.S.G. § 1B1.10(a)(2) as binding in light of the fact
that the Guidelines are now advisory. See Booker v.
United States, 543 U.S. 220 (2005). He also asserts that
his sentence is “unreasonable” and remand for
resentencing is mandatory and can be achieved pursuant to
Rule 35 of the Federal Rules of Criminal Procedure.
on June 3, 2015, DeJesus filed a motion to amend the written
judgment of conviction (doc. # 1761). In that motion, DeJesus
asserts that there is a discrepancy between my oral ruling at
his Crosby resentencing, on July 18, 2005, and the
written judgment filed on July 22, 2005. Under Rule 36, he
requests that I amend my written judgment by including a
statement of reasons that clarifies the alleged discrepancies
between what was said at the resentencing and what was
written in the judgment that followed.
motions raise two issues. The first issue is whether he is
entitled to a sentence reduction, and the second issue is
whether it is proper to issue an amended written judgment
that conforms to my oral statement of reasons at his
3582(c) prohibits the modification of previously imposed
sentences unless one of the enumerated exceptions applies. 18
U.S.C. § 3582(c). One such exception is “in 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.” 18 U.S.C. § 3582(c)(2). Section
1B1.10 of the Guidelines clarifies that “[e]ligibility
for consideration under 18 U.S.C. § 3582(c)(2) is
triggered only by an amendment listed in subsection (d) that
lowers the applicable guideline range.” U.S.S.G. §
1B1.10 Appl. Note 1 (2015). If an amendment does not have the
effect of lowering the defendant’s applicable Guideline
range, the district court is “not authorized under 18
U.S.C. § 3582(c)(2)” to reduce the
defendant’s sentence. U.S.S.G. § 1B1.10(a)(2)
(2015); see also United States v. Johnson, 732 F.3d
109, 114 (2d Cir. 2013). Furthermore, even if the defendant
is eligible for a sentence reduction, a court is not
permitted to reduce the defendant’s term of
imprisonment under section 3582(c)(2) “to a term that
is less than the minimum of the amended guideline
range.” U.S.S.G. § 1B1.10(b)(2); United States
v. Smith, 633 F. App’x 66, 67 (2d Cir. 2016).
“amended guideline range” is the 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 fact that a district court departed
downward at a prior sentencing does not affect the amended
Guideline range as contemplated by section 1B1.10.
Smith, 633 F. App’x 66, 68 (“[T]he
amended guideline range does not incorporate any departure a
court previously granted under § 4A1.3.”)
(internal quotation marks and alterations omitted).
moved to reduce his sentence based on an amendment to the
Guidelines that reduced his base offense level from 38 to 36.
That amendment had no effect on DeJesus’ total offense
level because, after considering the two point enhancement
for the use of a firearm, three points for being a manager or
supervisor in the drug organization, and two points for
employing a minor in the commission of his offense,
DeJesus’ total offense level remains at 43. At his
prior sentencing, I determined that DeJesus had criminal
history level of IV. Thus, his sentencing range remains life
imprisonment. Because Amendment 706 had no effect of reducing
DeJesus’ sentencing range, he is not eligible for a
section 3582(c) sentence reduction. Furthermore, even if his
total offense level was reduced from 43 to 41, he would still
be ineligible for a sentence reduction. A total offense level
of 41 and a criminal history category of IV yields a
guidelines range of 360-life. At his resentencing, I
sentenced him to 340 months’ imprisonment. Accordingly,
he is ineligible for a section 3582(c) reduction because his
current sentence is already lower than any amended Guideline
DeJesus’ arguments regarding my discretion to
resentence him are unavailing. First, Rule 35 does not
provide a mechanism to resentence DeJesus under the current
circumstances, more than fourteen days after his sentence and
not on the government’s motion. Fed. R. Crim. P. 35.
The only mechanism that would arguably apply to DeJesus is a
sentence reduction under section 3582(c). However, for
reasons already stated, he is not eligible. Though DeJesus is
correct that the Guidelines have been rendered advisory under
Booker, he does not cite any Second Circuit
authority indicating that I have the discretion to resentence
him on account of an amendment to the Guidelines that, based
on section 1B1.10, does not render him eligible for a reduced
sentence. In fact, courts have consistently held that
district courts are bound by the limitations of section
3582(c) as clarified in section 1B1.10 of the Guidelines.
Dillon v. United States, 560 U.S. 817, 827 (2010);
Johnson, 732 F.3d at 114. Thus, his motions for
reconsideration of my previous Order must be denied.