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Circuit Confirms Restriction on Motions for Sentence Reductions Under 18 U.S.C. § 3582(c)(2)

In United States v. Zapatero, the Second Circuit (Hall, Sullivan, Bianco) issued a published opinion concerning a narrow sentencing issue, ruling that a district court may not rely on a Sentencing Guidelines § 5G1.3(b) adjustment made at a defendant’s original sentencing to subsequently reduce the defendant’s sentence, pursuant to 18 U.S.C. § 3582(c)(2), to one that falls below the defendant’s amended Guidelines range.  The decision is based on strict interpretation of the Guidelines, which only permit reductions under Section 3582(c)(2) in fairly narrow circumstances.

Background

In December 2009, Zapatero entered federal custody in New York and pleaded guilty to a drug charge for which he was sentenced in March 2010 to a 51-month term of imprisonment.  While he was in custody on the New York drug charge, a grand jury in the District of Vermont returned an indictment charging him with a narcotics offense related to conduct spanning 2006 to 2009.  Zapatero was transferred from the Southern District of New York to the District of Vermont, where he pleaded guilty to the new charge in September 2011.

In connection with the sentencing, the Vermont court calculated a Guidelines offense level of 36 but then varied downward to a total offense level of 34 based on the 18 U.S.C. § 3553(a) factors, resulting in a Guidelines range of 168-210 months’ imprisonment.  The Vermont court sentenced Zapatero to a 168-month term of imprisonment.  It also found that the charges in the New York case were related to those in the Vermont case so that the sentences should run concurrently.  Finally, the Vermont court ultimately entered a judgment ordering that Zapatero receive credit from the date that his detention began in Vermont even though that credit would also include time spent in custody on the sentence in the New York case.

After the U.S. Sentencing Commission implemented Amendment 782, which retroactively reduced the base offense level for certain drug offenses, Zapatero moved to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2).  As a result of Amendment 782, Zapatero’s base offense level had decreased from 36 to 34, resulting in an advisory Guidelines range of 168-210 months’ imprisonment before consideration of the Section 3553(a) factors.  In his Section 3582(c)(2) motion, Zapatero argued that the Vermont court should reduce his sentence below his amended Guidelines range to reflect that, at the original Vermont sentencing, the district court had lowered his sentence pursuant to Guidelines § 5G1.3(b) to award him credit for time served on the sentence related to the New York case.  The district court denied the motion.

The Court’s Analysis

Section 3582(c)(2) authorizes district courts to reduce the sentence of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.  The statute imposes certain restrictions on the district court’s discretion, allowing a sentence reduction only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”  Section 1B1.10 of the Guidelines contains the policy statement applicable to Section 3582. 

Section 1B1.10(b)(2) restricts “the extent of the reduction authorized.”  In particular, that subsection prohibits a district court from “reducing the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and the Guidelines to a term that is less than the minimum of the amended guidelines range, except where a defendant previously provided substantial assistance to the government.”  (emphasis added).  Because Zapatero’s original 168-month sentence was at the bottom of his amended Guidelines range, the Court held that the district court had correctly found that he was ineligible for a sentence reduction under Section 3582(c)(2). 

The Court rejected Zapatero’s argument that the time-served adjustments made by the district court at the original sentencing pursuant to Guidelines § 5G1.3 should factor into calculating his “amended Guidelines range” within the meaning of Guidelines § 1B1.10(b)(2).  In making that argument, Zapatero had argued that the district court should be authorized to reduce his sentence through a Section 3582(c)(2) proceeding to as low as 119 months’ imprisonment, 49 months below the bottom end of his amended Guidelines range.

Commentary

There is a certain appeal to the argument made by the defendant here, but as the Court explains, the category of defendants who are eligible for Section 3582(c)(2) sentence reductions is narrow due to the specifics of the complicated thicket of statutes, Guidelines provisions and policy statements that govern such applications.  The Zapatero decision does raise questions, however, regarding whether Congress and the Commission should take further steps to enable defendants serving lengthy sentences on non-violent offenses to seek sentence reductions without needing to clear so many hoops.

By Jared S. Buszin and Harry Sandick