The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANT'S RENEWED MOTION FOR A REDUCTION OF SENTENCE AND PETITION FOR WRIT OF AUDITA QUERELA
[Motion filed on May 20, 2009]
Presently before the Court is Defendant's Renewed Motion for a Reduction of Sentence and, alternatively, Defendant's Petition for Writ of Audita Querela. Having reviewed the papers submitted to the court, the court DENIES Defendant's motion.
On April 21, 1993, Defendant was found guilty following a 14-day jury trial. Defendant was charged with conspiracy to distribute and possession of 186 kilograms of cocain; conspiracy to distribute and possession of 2,146 kilograms of cocain; and possession with intent to distribute 583 kilograms of cocain. On November 30, 1993, the court sentenced Defendant to 360 months imprisonment, based on an offense level of 42. The Ninth Circuit affirmed Defendant's conviction on appeal.
On June 13, 1996, Defendant filed his first Motion to Reduce Sentence Pursuant to 18 U.S.C. 3582(c)(2)("First Motion to Reduce"). (Dkt. No. 296.) This motion was predicated upon the enactment of Amendment 505 to the U.S. Sentencing Guidelines, which amended the drug quantity table and set a maximum offense level of 38 for 150 kilograms or more of cocaine. U.S.S.G. §2D1.1(C)(1). This amendment to the drug quantity table is retroactive. U.S.S.G. § 1B1.10(a), (c). Amendment 505, however, included a caveat. Application Note 16 provided that, "in an extraordinary case, an upward departure above offense level 38 on the basis of drug quantity may be warranted. For example, an upward departure may be warranted where the quantity is at least ten times the minimum required." U.S.S.G. 1B1.10(b).
In January 1998, the reviewing court declined to reduce Defendant's sentence. The court determined that under Amendment 505 an upward departure of four offense levels to offense level 42 and a sentence of 360 months was warranted, as the 2,146 kilograms of cocaine at issue in Defendant's case was significantly above "ten times" the 150 kilograms specified in Amendment 505.
On April 28, 1997, Defendant filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody. (Dkt. No. 311.) In this motion Defendant alleged his appellate counsel provided ineffective assistance by failing to raise meritorious issues upon appeal of Defendant's conviction to the Ninth Circuit. The reviewing court also denied this motion. The Ninth Circuit affirmed the denial of Defendant's § 2255 motion on March 9, 1999. United States v. Trujillo,172 F.3d 877(9th Cir. 1999).
On May 20, 2009, Defendant filed a Renewed Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) or, in the alternative, a Motion for a Writ of Audita Querela. Defendant's section 3582(c)(2) motion again requests that the court reduce Defendant's sentence to reflect the lowered maximum offense level enacted by Amendment 505 to the Sentencing Guidelines. Additionally, Defendant's section 3582(c)(2) motion argues that a reduced sentence is warranted because of the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220, 245 (2005). Defendant alternatively petitions the court for a writ of audita querela to reduce his current sentence. Defendant argues that the Supreme Court's decision in Booker created a gap in post-conviction relief, entitling Defendant to a writ of audita querela to obtain a reduced sentence.
Defendant petitions this court for a sentence reduction pursuant to 18 U.S.C. § 3582(C)(2). Defendant argues that he is entitled to a sentence reduction under section 3582(C)(2) because of the Supreme Court's 2005 ruling in United States v. Booker, 543 U.S. 220, 245 (2005). The court disagrees.
The Supreme Court's decision in Booker by itself does not satisfy the requirements necessary for the court to reduce Defendant's sentence under section 3582(C)(2). See 18 U.S.C. 3582(C)(2); Booker, 543 U.S. at 245. In Booker, the Supreme Court held that sentencing guidelines are advisory not mandatory. 543 U.S. at 245. The Court did not lower the sentencing guidelines.
United States v. Carrington, 503 F.3d 888, 891 (9th Cir. 2007). Furthermore, the Court's decision in Booker was a decision of the Supreme Court, and not a reduction in the sentencing guidelines enacted by the Sentencing Commission as required pursuant to section 3582(C)(2). 18 U.S.C 3285(C)(2). See Carrington, 503 F.3d at 890-91 (explaining that "Booker did not lower sentencing ranges, nor was Booker an action 'by the Sentencing Commission,'" as required to modify a sentence under §3582(c)(2)). Accordingly, Booker does not stand for the proposition that this court may employ 18 U.S.C. § 3582(C)(2) to resentence Defendant under the now advisory sentencing guidelines. The court declines to resentence Defendant on this basis.
Defendant next asks this court to consider whether or not to use its discretion to reduce Defendant's sentence pursuant to Amendments 505 and 536. (Renewed Motion 3.) Amendment 505 to the U.S. Sentencing Guidelines, enacted by the Sentencing Commission, amended the drug quantity table and lowered the maximum offense level for over 150 kilograms of cocaine to level 38. U.S.S.G. § 2D1.1(C)(1). Amendment 536 made this reduction in the maximum offense level retroactive. U.S.S.G. § 1B1.10(a), (c). These amendments were the ...