UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 04-cr-211-01-SM

 06-cr-055-01-SM 

Delvis Damian Villa Diaz

O R D E R

Defendant has filed an identical motion to reduce his

sentence in each of the above-referenced cases based upon the

recent amendments to the Federal Sentencing Guidelines regarding

cocaine base ("crack cocaine") offenses (document no. 26 in 04-

cr-211-01); (document no. 11 in 06-cr-055-01). He has also filed

a motion to proceed in forma pauperis in those cases (document

no. 27 in 04-cr-211-01); (document no. 12 in 06-cr-055-01). For

the reasons stated below, these motions are DENIED.

On May 1, 2007, the United States Sentencing Commission (the

"Commission") submitted to Congress an amendment to the Federal

Sentencing Guidelines that lowers the guideline sentencing range

for certain categories of offenses involving crack cocaine. 

Specifically, the amendment adjusts downward by two levels the

base offense level assigned to each threshold quantity of crack

cocaine listed in the Drug Quantity Table in §2D1.1 and provides

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a mechanism for determining the guideline range for offenses

involving crack cocaine and other controlled substances. This

amendment took effect November 1, 2007.

Pursuant to 28 U.S.C. § 994(u), the Commission also

determined that this guideline amendment would be applied

retroactively to offenders who were sentenced under prior

versions of the Guidelines Manual and who are incarcerated. The

Commission set the effective date for the retroactive application

of this amendment to be March 3, 2008, at which time reductions

in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on the

retroactive application of the crack cocaine amendment will be

authorized.

After having reviewed the offense for which the defendant

was convicted in this district and upon which he is presently

incarcerated, it is determined that defendant is not eligible to

seek a reduced sentence under this amendment. The presentence

report (using the November 1, 2005 edition of the Guidelines

Manual with the emergency guideline amendments effective March

27, 2006) determined the defendant was responsible for 14.82

grams of cocaine base (the equivalent of 297 kilograms of

marijuana), 10.2 grams of heroin (the equivalent of 10.2

kilograms of marijuana), and 29.83 grams of cocaine powder (the

equivalent of 5.966 kilograms of marijuana) which resulted in the

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equivalent of a total of 313.17 kilograms of marijuana and a base

offense level of 26 (for offenses between 100 and 400 kilograms

of marijuana). After applying a three level reduction for

acceptance of responsibility, the defendant’s total offense level

was determined to be 23. A two level reduction for the

possession of a dangerous weapon was not applicable because the

defendant was convicted of Possession of a Firearm During a Drug

Trafficking Crime, in violation of 18 U.S.C. § 924(c). 

At the sentencing hearing on July 27, 2006, there were no

objections to the presentence report. The Court adopted the

facts and findings in the report, determined the total offense

level to be 23, the criminal history category to be I, and the

advisory guideline range to be 60 months, plus the mandatory

consecutive term of 60 months. The defendant was sentenced to

120 months imprisonment with a recommendation for the Bureau of

Prisons drug treatment program and four years of supervised

release. 

After applying the retroactive application of the crack

cocaine amendment, the defendant is not entitled to receive a two

level reduction in his drug guideline calculation. The 14.85

grams of crack cocaine results in a lower marijuana equivalent of

237.6 kilograms; however, when this figure is added to the

marijuana equivalent for the heroin and powder cocaine amounts,

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the total marijuana equivalent is 253.766 and remains at a base

offense level of 26 (for offenses that involved between 100 and

400 kilograms of marijuana). Even if the drug weight calculation

was reduced, the defendant still is subject to a statutory five

year mandatory minimum sentence followed by a five year mandatory

consecutive sentence for the firearm charge. Therefore, pursuant

to USSG §1B1.10(a)(2)(B), the amendment does not have the effect

of lowering the defendant’s applicable guideline range.

Therefore, for the foregoing reasons, defendant’s motions to

reduce sentence (document no. 26 in 04-cr-211-01); (document no.

11 in 06-cr-055-01) are DENIED. As there is no filing fee

associated with the filing of these motions, the defendant’s

motions to proceed in forma pauperis in those cases (document no.

27 in 04-cr-211-01); (document no. 12 in 06-cr-055-01) are DENIED

as moot.

SO ORDERED.

Date: April 3, 2008 ____________________________________

Steven J. McAuliffe

United States District Judge

cc: Delvis Damian Villa Diaz, pro se

Counsel of Record

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