United States District Court, E.D. California
ORDER DENYING PETITIONER'S MOTIONS FOR 18 U.S.C. § 3582(c)(2) REDUCTION OF SENTENCE AND FOR MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. Nos. 261, 263)
ANTHONY W. ISHII, District Judge.
On October 31, 2011, Alced Broussard ("Petitioner") filed a motion to modify sentence under 18 U.S.C. § 3582(c)(2) seeking relief from a 240-month imprisonment term. See Doc. No. 261. On June 7, 2013, Petitioner filed a subsequent motion to modify sentence under § 3582(c)(2). See Doc. No. 262. On September 16, 2013, Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See Doc. No. 263. For the reasons set forth below, Petitioner's motions for sentence reduction and motion to vacate, set aside or correct sentence will be denied.
On March 24, 2004, Petitioner was found guilty by jury of one count of conspiracy to distribute over 50 grams of a mixture containing cocaine base, two counts of distributing cocaine base (one count for distributing 83.4 grams of cocaine base and the other for distributing.31 grams of cocaine base), and one count of possession of 5, 677 grams of PCP with intent to distribute. On July 1, 2005, Petitioner was sentenced to 300 months imprisonment as a career offender under the Sentencing Reform Act of 1986 ("SRA"). On September 1, 2006, the Ninth Circuit affirmed Petitioner's conviction but reversed the trial court on sentencing Petitioner as a career offender. United States v. Broussard, 200 F.App'x 696 (9th Cir. 2006). On January 22, 2007, on remand the trial court sentenced Petitioner to 240 months imprisonment pursuant to the statutory mandatory minimum. See 21 U.S.C. 841(b)(1)(A)(iv), (b)(1)(A)(viii) (2006) (amended 2009). Pursuant to 21 U.S.C. §§ 841, 851, application of the statutory mandatory minimum was based on a quantity finding of controlled substances in combination with a prior conviction for a felony drug offense. See Doc. No. 187.
Subsequently, the Fair Sentencing Act of 2010 ("FSA") temporarily increased the threshold quantity of cocaine base required to trigger both the 5-year and 10-year statutory minimum sentencing requirements. See U.S.S.G. § 2D1.1(c)(7). Amendment 748 reduced the potential range of sentence terms under the Federal Sentencing Guidelines ("FSG") for cocaine base-related offenses. Amendment 750 permanently implemented the FSA. Effective November 1, 2011, Amendment 759 retroactively implemented the changes made by Amendment 750. See U.S.S.G. 1B1.10(c).
III. MOTIONS FOR SENTENCE REDUCTION
A. Legal Standards
A court may modify a term of imprisonment "to the extent otherwise expressly permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). A court may authorize a reduction only if doing so is consistent with Federal Sentencing Commission policy statements. 18 U.S.C. § 3582(c)(2); Dillon v. United States, 560 U.S. 817, 826 (2010); see also Kimbrough v. United States, 552 U.S. 85, 85 (2007) (recognizing judges' discretion to depart from a within-Guidelines sentence to "serve the objectives of sentencing."). The Federal Sentencing Commission expressly authorized the retroactive application of Amendment 750. U.S.S.G. 1B1.10(c).
Petitioner seeks modification of sentencing for his conviction for distributing 83.4 grams of cocaine base. Petitioner's motion for modification pursuant to § 3582 is without merit and will be denied.
i. Relief Under Fair Sentencing Act of 2010 Amendment 750 to United States Sentencing Guidelines
In determining whether § 3582 warrants a sentence reduction, a court must determine the amended guideline range that would have applied to the Petitioner if the FSA had been in effect at the time Petitioner was sentenced. U.S.S.G. § 1B1.10(b)(1) (Policy Statement). If an amendment to the FSG does not lower the Petitioner's applicable guideline range, reducing the Petitioner's imprisonment term is not consistent with Sentencing Commission policy and is not authorized under § 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B) (Policy Statement).
Under the FSG, when multiple types of drugs are involved, courts are within their purview to aggregate drugs to their marijuana equivalency. See U.S.S.G. § 2D1.1, Application Note: 7. Using the drug equivalency tables in place under the SRA, the sentencing court found reasonable basis to determine that Petitioner conspired to distribute and possessed the equivalent of 1, 674.2 kilograms (83.71 grams of cocaine base), 5, 677 kilograms (5, 677 grams of PCP), and 4.3 grams (4.3 grams of marijuana) of marijuana. Under the SRA, the total ...