United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
8, 2019, Defendant Stephen Thomas Paulino
(“Defendant”) filed a motion to reduce his
sentence under the First Step Act. On May 23, 2019, the United
States responded, arguing that the Court should exercise its
discretion and deny Defendant's Motion. On May 27, 2019,
Defendant replied. On May 29, 2019, the Government filed a
sur-reply. The United States Probation Office for the
District of New Mexico filed a retroactive sentencing
review.The Motion is fully briefed.
31, 2019, the Court heard argument on the Motion. Mark C.
Pfizenmayer appeared on behalf of the Government. Defendant
waived his presence at the hearing and was represented by Todd
A. Coberly. After reviewing the briefs, the memorandum, and
considering the arguments of counsel, the Court will grant
FACTS & PROCEDURAL HISTORY
January 13, 2003, an undercover Albuquerque Police Officer
and a Drug Enforcement Agent (hereinafter
“agents”) arranged to make a two-ounce crack
cocaine buy with codefendant Dominic Martinez. When Mr.
Martinez arrived for the transaction, Defendant was sitting
in the front passenger seat. After the agents completed the
transaction, they arrested Mr. Martinez and Defendant. During
the search incident to arrest, the agents found 53 net grams
of cocaine base on Mr. Martinez and 32 net grams of cocaine
base and $4, 700.00 cash on Defendant.
March 26, 2003, the Government filed a two-count SUPERSEDING
INDICTMENT (Doc. 30). The Superseding Indictment charged
Defendant with conspiracy to distribute 50 grams or more of a
mixture or substance containing a detectable amount of
cocaine base in violation of 841(a)(1) and (b)(1)(A) and
possession with intent to distribute 5 grams and more of a
mixture or substance containing a detectable amount of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B). Id.
March 27, 2003, the Government filed an information under 21
U.S.C. § 851 asserting that as a career offender,
Defendant was subject to the enhanced penalty provisions of
21 U.S.C. §§ 841(b)(1)(A) and
(b)(1)(B). The enhanced penalty provision subjected
Defendant to a mandatory minimum sentence of ten (10) years,
and a maximum term of life imprisonment. Id. On May
5, 2003, Defendant pleaded guilty to Count II of the
Sentencing Guidelines incorporates the enhanced penalty
provision of § 841(b)(1)(B) in the Career Offender
Guideline, § 4B1.1. Defendant's statutory maximum
term was life imprisonment, which under § 4B1.1(b)
resulted in an offense level of 37 and a criminal history
category of VI. After deducting three points under U.S.S.G.
§§ 3E1.1 and 4B1.1(b) for acceptance of
responsibility, Defendant had a total offense level of 34,
which under the then mandatory Sentencing Guidelines gave him
a sentencing range of 262 to 327 months.
Presentence Report attributed 85.6 grams of cocaine base to
Defendant, which is the total amount of cocaine base found on
Defendant and codefendant Martinez. Before sentencing,
Defendant objected to that amount. During the plea hearing,
Defendant admitted through counsel that the total amount of
cocaine base attributable to him was 32 grams. Plea Hearing
Tr. May 6, 2003, at 19.
24, 2003, the Court sentenced Defendant to 262 months of
imprisonment with 8 years of unsupervised
release. Following Defendant's sentencing, on
July 24, 2003, the Government filed a motion to dismiss the
first count of the Superseding Indictment, which the Court
granted that same day.
Defendant's sentencing, federal law changed the amount of
crack cocaine needed to trigger certain penalties. Prior to
this Motion, Defendant moved twice for a sentence reduction:
first, on June 25, 2008 under the 2007 Crack Cocaine
Amendment, and second, on November 17, 2010 under the Fair
Sentencing Act of 2010, 124 Stat. 2372 (FSA). Both times
the Court denied Defendant's Motion based on
Defendant's status as a career offender.
December 21, 2018, the First Step Act of 2018, Pub. L. No.
115-319, 132 Stat. 5194 (Dec. 21, 2018) (“First Step
Act”) was enacted and made the FSA retroactive. This
2010, the statutory mandatory sentences for drug offenses
involving crack cocaine were significantly higher than the
statutory mandatory sentences involving powder cocaine by a
100 to 1 ratio. Dorsey v. United States, 567 U.S.
260, 263 (2012). In 2010, Congress passed the Fair Sentencing
Act (FSA). By changing the quantities of crack cocaine
necessary to trigger 21 U.S.C. § 841 offenses, the FSA
reduced the crack to powder cocaine disproportion to an 18 to
1 sentencing ratio Id. at 264; FSA, 124 Stat. 2372.
to the FSA, a defendant committed an 841(b)(1)(B) offense,
also known as a B-Level offense, when a defendant possessed
with intent to distribute 5 grams or more of a substance
containing cocaine base. Without any enhancements, a B-Level
offense has a statutory range of 5 to 40 years imprisonment.
See FSA, 124 Stat. 2372, Sec. 2(a)(2); see also
Dorsey, 567 U.S. at 269. After the FSA, the amount
necessary to trigger a B-Level offense is 28 grams or more.
Id. The FSA made possession with intent to
distribute 5 grams or more of cocaine base a §
841(b)(1)(C) offense or a C-Level offense, which, without
enhancements, has a statutory maximum sentence of 20 years
imprisonment. See 21 U.S.C. § 841(b)(1)(c);
Dorsey, 567 U.S. at 269.
took effect on August 3, 2010. Dorsey, 567 U.S. at
264. After its passage, the FSA applied both to offenses that
occurred after the Act and to those defendants who offended
prior to the Act but were sentenced after its effective date.
Id. However, the FSA did ...