-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE JIMENEZ, : CIVIL ACTION

Petitioner, : NO. 08-0427

:

:

v. :

:

UNITED STATES OF AMERICA, : CRIMINAL ACTION

: NO. 04-63

Respondent. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MAY 7, 2009

Petitioner Jose Jimenez (“Petitioner”) is serving a

120-month term of imprisonment for an offense involving the

possession and distribution of cocaine base (“crack”). He now

seeks the reduction of his sentence to reflect Amendment 706 to

the United States Sentencing Commission Guidelines (the

“Guidelines”), which altered § 2D1.1 of the Guidelines to reduce

the sentencing ranges applicable to crack offenses. Because

Petitioner was sentenced based on a mandatory minimum term of

imprisonment that is unaffected by Amendment 706, his motion will

be denied.

I. BACKGROUND

Petitioner was charged by an indictment for

distribution of approximately 124 grams of crack, in violation of

Case 2:04-cr-00063-ER Document 70 Filed 05/08/09 Page 1 of 5
This ratio was derived from the 100-to-1 ratio created 1

by Congress in its statutory mandate of minimum sentences for

cocaine offenses. See Anti-Drug Abuse Act of 1986, 21 U.S.C. §

841(b)(1) (requiring a five-year mandatory minimum penalty for a

first-time trafficking offense involving 5 grams or more of

-2-

21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). This offense carries a

mandatory minimum 120-month term of imprisonment. Accordingly,

on June 13, 2005, the district court sentenced Petitioner to the

mandatory minimum of 120 months imprisonment.

II. MOTION FOR RESENTENCING

Petitioner moves, pursuant to 18 U.S.C. § 3582, for a

reduction of his sentence because of recent changes to the

Guidelines in the treatment of offenses involving crack. 

A. Petitioner’s Sentence Was “Based On” a Mandatory

Minimum Sentence, Not the Applicable Guidelines,

Rendering Section 3582(c)(2) Inapplicable.

Petitioner argues he is entitled to a two level

sentence reduction under Amendment 706 of the Guidelines. On

November 1, 2007, the United States Sentencing Commission (the

“Commission”) adopted Amendment 706 to the Guidelines to address

what the Commission had come to view as unwarranted disparities

in the sentences of defendants who possess or distribute various

forms of cocaine. Prior to November 1, 2007, the Guidelines

provided for a 100-to-1 ratio in sentences for crimes involving

cocaine powder compared to those involving crack. 

1

Case 2:04-cr-00063-ER Document 70 Filed 05/08/09 Page 2 of 5
crack, or 500 grams of powder cocaine).

-3-

Under the November 1, 2007 amendment, the ratio between

powder and crack sentences has been decreased. For example, 150

kilograms of cocaine powder is now treated as the equivalent of

4.5 kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2007). The

bottom line for individual defendants is that a defendant

sentenced under § 2D1.1 for a crack offense after November 1,

2007 receives a base offense level that is two levels lower than

what he would have received for the identical offense if he had

been sentenced before the November 1, 2007 amendment. 2 Federal

Sentencing Guidelines Manual App. C 1160 (“Appendix C”).

Section 3582(c)(2) provides the authority to reduce a

sentence only if “such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” 18

U.S.C. §3582(c)(2). The applicable policy statement, §

1B1.10(a), provides that if “the guideline range applicable to

th[e] defendant has . . . been lowered as a result of an

amendment to the Guidelines Manual listed in subsection (c)

below,” a reduction in the defendant’s term of imprisonment is

authorized under 18 U.S.C. § 3582(c)(2). U.S.S.G. § 1B1.10(a). 

Accordingly, a reduction in sentence is not authorized

under § 3582(c)(2) if an amendment is applicable to a defendant

but “does not have the effect of lowering the defendant’s

applicable guideline range because of the operation of another

Case 2:04-cr-00063-ER Document 70 Filed 05/08/09 Page 3 of 5
guideline or statutory provision (e.g., a statutory mandatory

term of imprisonment).” U.S.S.G. § 1B1.10 n.1(A)(ii); see, e.g.,

United States v. Peters, 524 F.3d 905, 906-07 (8th Cir. 2008)

(holding reduction in sentence for a crack violation was

inappropriate when the defendant was sentenced to the statutory

mandatory minimum); United States v. Jones, 523 F.3d 881, 882

(8th Cir. 2008) (same); United States v. McGuire, 524 F.3d 891,

892 (8th Cir. 2008) (same); United States v. Hanlin, 48 F.3d 121,

125 (3d Cir. 1995) (upholding sentence when the defendant was

sentenced to the statutory mandatory minimum).

Petitioner’s motion must be denied because the Court

lacks the authority under § 3582 to reduce Petitioner’s sentence.

Here, Petitioner is not eligible for a reduction under Amendment

706 because he was not sentenced based on a guideline range, but

rather on the 120-month mandatory minimum term of imprisonment

required under § 841(a)(1) and § 841(b)(1)(A). As a result,

Amendment 706 does not affect Petitioner’s sentence and his

instant motion will be denied. 

III. CONCLUSION

For the reasons set forth above, the motion for a

reduction in sentence will be denied. An appropriate order

follows.

Case 2:04-cr-00063-ER Document 70 Filed 05/08/09 Page 4 of 5
-5-

Case 2:04-cr-00063-ER Document 70 Filed 05/08/09 Page 5 of 5