UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 07-cr-091-01-SM

 

Juan Evaristo Sanchez-Noboa

O R D E R

The defendant, Juan Evaristo Sanchez-Noboa, moved for a

sentence reduction based upon the cocaine base ("crack cocaine")

amendments to the Federal Sentencing Guidelines implementing the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(2010) ("2010 Fair Sentencing Act") (document no. 41). For the

reasons stated below, the motion to reduce sentence is DENIED.

On August 3, 2010, Congress enacted the 2010 Fair Sentencing

Act to restore fairness to crack cocaine sentences. 

Specifically, the 2010 Fair Sentencing Act increased the

threshold quantity of crack cocaine for certain base offense

levels listed in the Drug Quantity Table in §2D1.1, eliminated

the mandatory minimum sentence for simple possession of crack

cocaine, and directed the United States Sentencing Commission

("Commission") to review and amend the sentencing guidelines to

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account for specified aggravating and mitigating circumstances in

certain drug cases.

Pursuant to the directive in the 2010 Fair Sentencing Act,

the Commission promulgated a temporary, emergency amendment

implementing the Act effective November 1, 2010. See United

States Sentencing Commission, Supplement to the 2010 Guidelines

Manual (Nov. 1, 2010). On April 6, 2011, the Commission repromulgated as permanent the temporary, emergency amendment and,

pursuant to 28 U.S.C. §994(p), submitted Amendment 750 for

congressional review on April 28, 2011.

On June 30, 2011, the Commission voted to add Parts A and C

of Amendment 750 to §1B1.10(c), which identifies those amendments

to the Federal Sentencing Guidelines that may be considered for

retroactive application pursuant to 28 U.S.C. §994(u). Part A

amended the Drug Quantity Table in §2D1.1 for crack cocaine

offenses and made related revisions to Application Note 10 to

§2D1.1. Part C deleted the cross reference in §2D2.1(b) under

which an offender who possessed more than five (5) grams of crack

cocaine was sentenced under §2D1.1. On November 1, 2011, the

amendment to §1B1.10 took effect, at which time reductions in

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

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retroactive application of Parts A and C of Amendment 750 were

authorized. 

After having reviewed the offense for which the defendant

was convicted in this district and upon which he is presently

incarcerated, the defendant is not eligible to seek a reduced

sentence under this amendment.

On April 29, 2008, the defendant pled guilty to the

following: Distribution of Cocaine Base and Cocaine in Excess of

5 Grams, Distribution of Cocaine Base in Excess of 5 Grams,

Distribution of Cocaine, and Re-entry After Deportation. Based

on the offenses and quantities of drugs involved and after

various adjustments to the base offense level, the defendant's

total offense level was 28 and his advisory guideline range was

87 to 108 months. Because the defendant was subject to a

statutory minimum mandatory ten (10) year penalty on the

Distribution of Cocaine Base charge, however, the statutory

guideline range became 120 months pursuant to USSG § 5G1.1(b). 

The defendant was sentenced to a 120 months on each count, with

all terms to be served concurrently. 

On this record, the defendant is not entitled to a sentence

reduction based on the retroactive application of the crack

cocaine amendment. In short, if the defendant was not subject to

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the statutory minimum mandatory ten (10) year sentence, the

application of the crack cocaine base amendment in this case

would have reduced his total offense level from 30 to 26. In

this case, however, the defendant was sentenced pursuant to the

statutory minimum mandatory ten (10) year penalty provision. The

policy statement governing retroactive application of the

guideline amendment, USSG § 1B1.10, does not authorize a

reduction in statutory minimum penalties. As a result, because

the retroactive crack base guideline amendment has no application

to the statutory provision for which the defendant was sentenced,

the amendment has no impact on his sentence. 

Therefore, because the defendant received a minimum

mandatory sentence, he is not eligible for a further reduction of

his sentence based upon the crack cocaine base amendment. Thus,

defendant's motion to reduce sentence (document no. 41) is

DENIED.

SO ORDERED.

Date: ________________________________

Steven J. McAuliffe

United States District Judge

cc: Juan Evaristo Sanchez-Noboa, pro se

Counsel of Record

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