United States v. Slutzkin

          MEMORANDUM OF DECISION DENYING FIRST STEP ACT MOTION FOR IMMEDIATE RELEASE OR RESENTENCING [ECF NO. 62]

          Hon. Vanessa L. Bryant United States District Judge.

         Petitioner Brian Slutzkin (“Mr. Slutzkin” or “defendant”) brings this motion for relief under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (“First Step Act”), arguing that he is statutorily eligible for a sentence reduction and that keeping him incarcerated any longer would serve no purpose. [ECF No. 62 at 1-4].

         For the following reasons, Mr. Slutzkin's Motion for Sentence Reduction is DENIED.

         Background

         On March 13, 2009, Mr. Slutzkin appeared in the United States District Court for the District of Connecticut, waived his right to indictment, and, pursuant to a plea agreement, pled guilty to a one-count Information charging him with intent to distribute five grams or more of cocaine base, or crack cocaine, in violation of 21 U.S.C. §§ 84a1(a)(1), (b)(1)(B). [ECF Nos. 1, 3].

         In the Plea Agreement, the Parties agreed that Mr. Slutzkin had a base offense level of 24 because the amount of narcotics attributable to Mr. Slutzkin was at least 5 grams but less than 20 grams of cocaine base. To reflect the offense characteristics, two levels were added because a dangerous weapon was possessed, and three levels were subtracted for acceptance of responsibility. [ECF No. 3 at 5-6]. The Plea Agreement included a “Stipulation of Offense Conduct” in which the Parties stipulated that Mr. Slutzkin “knowingly and intentionally possessed with the intent to distribute 15.7 grams of . . . cocaine base (‘crack'), . . . [and] possessed a dangerous weapon at the time he possessed and intended to distribute cocaine base.” Id. at 12.

         The Presentence Report calculated Mr. Slutzkin's Criminal History Category as V, based on the following offenses:

• An April 25, 2003 conviction in Connecticut Superior Court for the sale of narcotics.^[1] [ECF No. 58-2 ¶ 32]. Mr. Slutzkin was sentenced to five years' imprisonment, suspended, and five years' probation. Id.

• An October 25, 2007 conviction in Connecticut Superior Court for breach of peace for assaulting his girlfriend by grabbing her throat and throwing her to the floor.^[2] Id. ¶ 33. Mr. Slutzkin was sentenced to six months' imprisonment, suspended, and 18 months conditional discharge. Id.

• A December 18, 2008 conviction in Connecticut Superior Court for having a weapon in a motor vehicle.^[3] Id. ¶ 34. Mr. Slutzkin was sentenced to one years' imprisonment, to run concurrently with the following conviction. Id.

• A separate December 18, 2008 conviction in Connecticut Superior Court for two counts of assault in the first degree and for having a pistol with no permit. Id. ¶ 35.^[4] Mr. Slutzkin was sentenced to 10 years' imprisonment on each count of assault, and two years' imprisonment on the weapon charge; all sentences were imposed concurrently. Id.

         These offenses led to eight Guideline criminal history points, and two points were added because Mr. Slutzkin was on probation when he was arrested for the federal offense. Id. ¶ 36. Mr. Slutzkin ‘s convictions placed him in criminal history category V, id., which when combined with a total offense level of 23, id. ¶ 67, resulted in a recommended Sentencing Guideline range of 84-105 months, id., with a mandatory minimum sentence of 60 months, id. ¶ 66, and a minimum of four years of supervised release, id. ¶ 69, to run concurrently or consecutively to Mr. Slutzkin's December 18, 2008 state sentence at the Court's discretion. Id.

         At his June 26, 2009, sentencing, the Court imposed a within-Guideline sentence of 84 months of imprisonment to run consecutively to Mr. Slutzkin's state sentence, and five years' supervised release.” [ECF Nos. 18, 19].

         On July 6, 2009, Mr. Slutzkin filed a timely notice of appeal. [ECF No. 20]. On appeal, Mr. Slutzkin argued that “(1) it was error to add three criminal history points for the December 2008 state sentence pursuant to U.S.S.G. § 4A1.1(a); (2) it was error to add two criminal history points for commission of the instant federal offense while on probation pursuant to U.S.S.G. § 4A1.1(d); and (3) the district court improperly imposed consecutive, rather than concurrent, sentences pursuant to U.S.S.G. § 5G1.3.” United States v. Slutzkin, 382 Fed.Appx. 65, 67 (2d Cir. 2010). The Second Circuit, via Summary Order, “reject[ed] all of Slutzkin's arguments and affirm[ed] the judgment of the district court.” Id.

         On December 17, 2014, Mr. Slutzkin filed a civil habeas petition under 28 U.S.C. §2255. No. 14-cv-1889 (VLB), [ECF No. 1]. Mr. Slutzkin's Petition requested that the Court reduce his offense level by two based on Amendment 782 to the United States Sentencing Guidelines, which effected a 2-level reduction in the base offense level of certain drug offenses carrying a mandatory minimum sentence. Id. at 6 (“On Nov 1^st 2014 a 2 pt reduction was applied to all drug federal offenses.”).

         On April 15, 2015, Mr. Slutzkin filed a motion requesting the same relief in this case. No. 3:09-cr-00060 (VLB), [ECF No. 43]. In that motion, Mr. Slutzkin requested that “the Court enter an amended judgment in his case pursuant to 18 U.S.C. § 3582(c)(2) as it implements Amendment 782 to the United States Sentencing Guidelines. Specifically, Mr. Slutzkin asks this Court to reduce his sentence of imprisonment from 84 months to 60 months.” Id. at 1.

         On July 20, 2015, the Court denied Mr. Slutzkin's civil habeas petition as moot in light of his motion for the exact same relief in this case. No. 14-cv-1889 (VLB), [ECF No. 4 (“Petitioner's motion to vacate seeks a two point reduction in his sentence based on Amendment 782 to the United States Sentencing Guidelines. See [Dkt. #1 at 6]. On April 15, 2015, Petitioner filed a motion seeking the exact same relief in the related matter, U.S. v. Slutzkin, No. 09-CR-60 (VLB) (D. Conn. filed Mar. 9, 2009). See [Dkt. #43]. As Petitioner's motion in that earlier-filed case is presently pending, Petitioner's motions in this separate action are wholly duplicative, and the action is therefore dismissed.”)].

         The Probation Office's “Amendment 782 Addendum to the Presentence Report” noted that since his federal sentencing in June 2009, Mr. Slutzkin had received the following disciplinary citations and sanctions while in state incarceration:

• “8/25/2014, SRG Affiliation, 15 days punitive segregation, loss of community and telephone privileges for 45 days, loss of recreation for 10 days;”

• “7/30/2014, SRG Affiliation, 7 days punitive segregation, loss of community and telephone privileges for 30 days, loss of recreation for 10 days;”

• “3/4/2014, SRG Affiliation, 6 days punitive segregation, loss of recreation for 6 days, loss of social visiting and social correspondence privileges for 20 days;”

• “8/28/2013, Security Tampering, loss of recreation for 10 days, loss of community and social correspondence privileges for 15 days;”

• “7/23/2013, SRG Affiliation, 7 days punitive segregation, loss of recreation for 10 days, loss of social visiting and social correspondence privileges for 30 days;”

• “6/6/2013, Flagrant Disobedience, 1 day in punitive segregation and loss of recreation for 10 days;”

• “5/31/2013, Interfering with Safety/Security of Institution, 7 days in punitive segregation, loss of recreation for 10 days, loss of social visiting and ...