UNITED STATES DISTRICT COURT F v L
FOR THE DISTRICT OF COLUMBIA E D

JUL 3 () 2009

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UNITED STATES oF AMERICA U_S_ D,S,-H,CT COURT

v. Criminal Case No. 04-094 (RBW)

SABINO GARCIA,

Defendant.

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MEMoRANDUM oPlNloN‘

This matter last came before the Court on the motion of the defendant, Sabino Garcia,
seeking reduction of his 175 month sentence to a sentence of less than l50 months
pursuant to 18 U.S.C. § 3582(0)(2) (2006). Motion to Reduce Sentence ("Mot.") at l.
The government does not oppose reducing the defendant’s sentence to 150 months, but
does oppose any greater reduction of the sentence. Government’s Response to
Defendant’s Motion to Reduce Sentence ("Opp’n") at l. For the reasons set forth below,
the Court declined to reduce the defendant’s sentence below 150 months as indicated in

ns Aprii 23, 2009 ord@r?

1 The l\/[emorandum Opinion corresponds with and supplements the Court’s Order of
April 23, 2009.

2 The Court considered the following papers in resolving the defendant’s motion: the
defendant’s Motion to Reduce Sentence; the Govemment's Response to Defendant's
Motion to Reduce Sentence; and the defendant’s Reply to Govemment's Response to
Defendant's Motion to Reduce Sentence.

I. Background

On December 15, 2004, a jury convicted the defendant of possession with intent to
distribute five grams or more of cocaine base, also known as crack, in violation of 21
U.S.C. §§ 841(a)(l), 841(b)(l)(B)(iii) (2006). Mot. at 1; Opp’n at 2. Following the
defendant’s conviction, but before he was sentcnced, the Supreme Court announced its
decision in United States v. Booker, 543 U.S. 220 (2005), which held that the sentencing
ranges designated by the United States Sentencing Guidelines ("Guidelines") were now
advisory and no longer binding on sentencing courts. L<L at 264. This Court then
sentenced the defendant on May 20, 2005, to a prison term of 175 months, which was at
the top of the applicable sentencing range of 140 to 175 months. Opp’n at 2. On appeal,
the District of Columbia Circuit affirmed Mr. Garcia’s conviction, concluding that the
sentence was supported by the evidence and that "there [wa]s no indication in the record
that [this] court treated the Sentencing Guidelines as mandatory." United States v.
gar_¢ia, 244 F. App’x 376, 377(13.€. cir. 2007), m d@, _ U.S. _, _ 123 s. Cr.
2054 (2008).

II. Legal Analysis

On November 1, 2007, the United States Sentencing Commission ("Commission"), in
an effort to alleviate the problems caused by the current 100-to-1 drug quantity ratio
between crack and powder cocaine as mandated by 21 U.S.C. § 841, adopted
Amendment 706, which reduced the offense levels and corresponding sentence ranges for
crack cocaine-related offenses by two points. United States Sentencing Guidelines
Manual ("U.S.S.G.") supp. to app. C, amend. 706 (2008). Less than one month later, the

Commission issued two additional amendments that made Amendment 706 retroactive

and revised Guidelines section 1B1.10, the Commission’s policy statement on the
application of sentence reductions under 18 U.S.C. § 3582(c)(2) (2006). I_d. amend. 712,
713. ln those revisions, the Commission made clear that "proceedings under 18 U.S.C.
3582(c)(2) . . . do not constitute a full resentencing of the defendant." U.S.S.G.
§1Bl.10(a)(3). The revised policy statements also prohibited courts from lowering a
"defendant’s tenn of imprisonment . . . to a term that is less than the minimum of the
amended [G]uideline range." I;d. § lBl.10(b)(2)(A). Therefore, had the defendant been
sentenced under the Commission’s amended Guidelines, the crime for which he was
convicted would have had a guideline range of 120 to 150 months. Mot. at 2; Opp’n at 6;
g U.S.S.G. supp. to app. C, amend. 706, 711 (2008).

18 U.S.C. §3582(c)(2) provides that the Court, in its discretion, may reduce a
defendant’s sentence if it finds that the 18 U.S.C. § 3553(a) factors warrant a lesser
sentence. Here, the defendant contends that the sentence disparity statutorily mandated
for crack and powder cocaine convictions,3 his post-sentencing completion of drug and
anger management treatment programs and other educational courses, coupled with his
likely deportation following the completion of his sentence warrant the reduction in his
sentence. Mot. at 17-18. The defendant further contends that in evaluating the
appropriateness of his original sentence, this Court can and should reduce his sentence
below the minimum amended guideline range, despite section lB1.10 policy statements

to the contrary. I_d_. at 7. The defendant maintains that pursuant to the Supreme Court’s

3 The maximum amended guideline prison sentence applicable to the defendant as a crack
cocaine offender is more than three times greater than the Guideline term of incarceration
applicable to a similarly situated defendant convicted of possession with intent to
distribute powder cocaine. Mot. at 17.

decision in §_o_cg<g, the applicable amended Guidelines and policy statements are merely
advisory in resentencing proceedings under § 3582(c)(2).4 l;d. at 7-8. lt is the
defendant’s position that if Ll_<g’s reasoning is not applied to his motion to reduce his
sentence, § lB1.10 would effectively amount to a mandatorily enforced sentencing
mechanism in direct contradiction of the Congress’ objective and the Commission’s
mandate to "perrnit individualized sentences" because it would preclude courts from
considering the factors listed in § 3553(a) and thereby deprive judges of their
discretionary power to impose appropriate "individualized sentenc[ing]." I;d. at 11
(quoting 28 U.S.C. § 99l(b)).
As noted above, the government does not oppose reducing the defendant’s sentence

to the maximum amended guideline range of 150 months, but does oppose any further

reduction. Opp’n at l. The government argues that Booker is inapplicable to

§ 3582(c)(2) sentence reductions because (1) _B_og)_l;g is limited to only full sentencing
hearings, and (2) the Sixth Amendment issue that formed the basis of the Boc&r decision
is not implicated in § 3582(0)(2) proceedings. Opp’n at 16, Thus, the government
contends that the policy statements in section lB1.10 are mandatory and limit this
Court’s re-evaluation to only a sentence within the amended Guideline range, while "[a]ll

other guideline application decisions made during the original sentencing remain intact."

4 The defendant also argues that the Supreme Court’s decision in Kimbrough v United
States, 552 U.S. 85, _, 128 S. Ct. 558, 564 (2007), authorizes this Court to reduce his
sentence below the minimum guideline range based solely on policy decisions regarding
the "disparity between the Guidelines’ treatment of crack and powder cocaine offenses."
Mot. at 5 (intemal quotation marks omitted). Other courts that have considered similar
arguments have dismissed them for the same reason they have found Booker inapplicable
to § 3582(0)(2) proceedings. §§ e.g., United States v. Melvin, 556 F.3d 1190, 1193

(l lth Cir. 2009); United States v. Fanfan, 558 F.3d 105, 111 (5th Cir. 2009). Like the
Booker issue raised by the defendant, the Court also finds it unnecessary to rule on this
claim.

§ at 8 (citation omitted). And because the defendant was originally sentenced to the
maximum guideline sentence of 175 months under the pre-amendment guideline range,
the government contends that, at most, his sentence can only be reduced to the maximum
guideline sentence under the amended range, 150 months. l_d_. at 8-9.

The Ninth Circuit has adopted the view advanced by the defendant. § §§
States v. Hicks, 472 F.3d 1167, 1173 (2007). In @, the court found that mr
expressly rejected the idea that the Guidelines could be mandatory in one context and
advisory in another due to the "administrative complexities such a system would create".
I;d. at 1170 (quoting Boolcer, 543 U.S. at 266). Thus, the Ninth Circuit found that _l@o;ker
set a "constitutional standard" that applied in every sentencing proceeding, including
those under § 3582(c)(2), and required that the sentencing Guidelines be advisory in all
contexts. l_d_. at 1173. While m was decided before the section lB1.10 revisions that
are at issue here were made, the Ninth Circuit did hold that policy statements requiring
that the Guidelines be applied mandatorily are void as they are contrary to the mandate of
§QQ@- Ll-

Two judges of this Court have followed Hi_c§. § United States v. Reid, 584 F.
Supp. 2d 187, 191-93 (D.D.C. 2008) (holding that Boogker dictates that amended
Guidelines, when applied in the § 3582(c)(2) context, are advisory and found that
§ 3553(a) factors, such as defendant’s post-sentencing completion of "self-help" courses
warranted the reduction of defendant’s sentence to 9 months below the minimum
amended guideline); United States v. Ragland, 568 F. Supp. 2d 19, 25 (D.D.C. 2008)

(concluding that Booker prevented courts from applying guidelines mandatorily in

sentence reductions proceedings and finding that the Sentencing Commission was
prohibited from undermining B_o£k_er by revising section 1B1.10).

However, a number of circuit courts have more recently held that §c_)_ok£ is
inapplicable to § 3582(c)(2) proceedings and therefore the limitation imposed by section
lB1.10 does not implicate the constitutional concerns addressed in mg § §§
States v. Dunphy, 551 F.3d 247, 254 (4th Cir. 2009) (holding that the ms analysis was
flawed and that l did not apply to § 35 82(c)(2) because such proceedings were not
full sentencing hearings and only allowed for reductions rather than increases to
sentences); United States v. Cunningham 554 F.3d 703, 707 (7th Cir. 2009) (finding that

§ 3582(c)(2) proceedings did not invoke Booker because they were not full sentencing

hearings or resentences, nor did they raise the same Sixth Amendment eoncern); U_nitgl
States v. Stark, 551 F.3d 839, 842 (8th Cir. 2009) (holding that "neither the Sixth
Amendment or §§ prevents Congress from incorporating a guideline provision as a
means of defining and limiting a district court’s authority to reduce a sentence under

§ 3582(0)"); United States v. Rhodes, 549 F,3d 833, 841 (l0th Cir. 2008) (declaring
ll holding to apply only to original sentence proceedings under § 3553 and thus
sentencing court was prohibited in §3582(c)(2) proceedings from modifying sentence
below amended guideline minimum as proscribed by section §1B1.10); silso_ 1
States v. Fanfan, 558 F.3d 105 (lst Cir. 2009); United States v. Doe, 564 F.3d 305 (3d
Cir. 2009); United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009).

However, given the circumstances of this case, the Court finds it unnecessary to

decide mere applicability to § 3582(c)(2) proceedings. As the transcript from the

original sentencing reveals, this Court was convinced from the defendant’s prior criminal

record that he would continue to commit more crime following the completion of his
incarceration. Sentencing Tr. 12: 20-22, May 16, 2005 ("1 just have no reason to believe
that when you get out, you are going to do anything other than commit more crime.").
Thus, in order to protect society from the defendant’s future transgressions, this Court
chose to incarcerate the defendant at the top-end of the applicable guideline, which was
175 months. Sentencing Tr. 14: 1-6. And in choosing to impose that sentence, the Court
reasoned that although a greater sentence was warranted, the goal of avoiding sentencing
disparity justified imposing a sentence that adhered to the applicable guideline. I_d. at
13:20-22 ("[S]ome degree of uniformity is important to the system . . . [and] other than
that, 1 might be inclined to give you more time.").

Given the defendant’s post-sentencing behavior, the Court finds that a two-point
sentence reduction as authorized by the Commission’s amended Guidelines is warranted
However, the defendant’s behavior is not enough to override the § 3553(a) factors,
specifically, inter alia, the need to protect the public from the defendant’s future crimes,
that formed the basis of the defendant’s original maximum guideline sentence and,
therefore, the Court concludes that the maximum amended sentence of 150 months is the
appropriate sentence, taking again into account the § 3553(a) factors. Therefore,

although the Court has serious concerns about the applicability of Booker to § 35 82(c)(2)

proceedings, it need not address the issue of whether Booker allows a judge to reduce a

defendant’s sentence below the amended Guideline range in § 35 82(c)(2) proceedings.

III. Conclusion
For all of the foregoing reasons, this Court granted the defendant’s motion for
reduction in his sentence in part and denied it in part in an Order issued on April 23,

2009. Accordingly, his sentence was reduced from 175 months to 150 months.

