UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 08-cr-082-01-SM

 

Carlos Gonzalez

O R D E R

The defendant, Carlos Gonzalez, moved for court appointed

counsel to assist him in the pursuit of a sentence reduction

based upon the cocaine base ("crack cocaine") amendment 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. 25). That amendment was

given retroactive effect on November 1, 2011. For the reasons

stated below, the defendant's motion to appoint counsel is

DENIED.

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

Act to restore fairness to crack cocaine sentences. 

Specifically, the 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

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minimum sentence for simple possession of crack cocaine, and

directed the United States Sentencing Commission ("Commission")

to review and amend the sentencing guidelines to 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

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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

retroactive application of Parts A and C of Amendment 750 were

authorized. 

Having reviewed the offense of conviction, the sentence

imposed, and the pertinent record, it is clear that the defendant

is not eligible to seek a reduced sentence under the

retroactively applicable amendment.

On November 20, 2008, the defendant pled guilty to a six (6)

count Indictment charging him with five (5) counts of

Distribution of a Controlled Substance and one (1) count of

Possession of a Controlled Substance with Intent to Distribute,

all in violation of 21 U.S.C. § 841 (a)(1). At sentencing, the

defendant was deemed to be a career offender and, as a result,

his total offense level was thirty-one (31) and the advisory

guideline range was 188 to 235 months. After receiving an eight

(8) level downward departure for substantial assistance, which

lowered the imprisonment range to 92 to 115 months, the court

imposed a sentence of 100 months imprisonment and six (6) years

of supervised release on each count, to be served concurrently. 

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

sentence reduction based on a retroactive application of the 2010

Fair Sentencing Act amendment (Amendments 750, Parts A and C). 

Under the 2010 Fair Sentencing Act the career offender guideline

still sets the applicable Guideline Sentencing Range in the

defendant’s case. The retroactive guideline amendment did not

lower that range — it was 188 to 235 months when defendant was

sentenced and it remains at 188 to 235 months now. 

The retroactive amendment, by its terms, does not apply to

defendant. Because “the guideline range applicable to . . .

defendant” has not been “lowered as a result of an amendment to

the Guidelines Manual listed in subsection (c),” U.S.S.G. §

1B1.10(a)(1), defendant is not entitled to sentence relief. As a

result, it would be futile, and an unnecessary expenditure of

taxpayer monies, to appoint counsel to pursue a sentence

reduction on his behalf. Defendant's motion to appoint counsel

(document no. 25) is DENIED.

SO ORDERED.

Date: March 12, 2012 __________________________________

Steven J. McAuliffe

United States District Judge

cc: Carlos Gonzalez, pro se

Counsel of Record

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