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United States v. Paulino

United States District Court, D. New Mexico

June 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
STEPHEN THOMAS PAULINO, Defendant.

          MEMORANDUM OPINION AND ORDER

         On May 8, 2019, Defendant Stephen Thomas Paulino (“Defendant”) filed a motion to reduce his sentence under the First Step Act.[1] On May 23, 2019, the United States responded, arguing that the Court should exercise its discretion and deny Defendant's Motion.[2] On May 27, 2019, Defendant replied.[3] On May 29, 2019, the Government filed a sur-reply.[4] The United States Probation Office for the District of New Mexico filed a retroactive sentencing review.[5]The Motion is fully briefed.

         On May 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[6] and was represented by Todd A. Coberly. After reviewing the briefs, the memorandum, and considering the arguments of counsel, the Court will grant Defendant's Motion.

         I. FACTS & PROCEDURAL HISTORY

         On 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.[7]

         On 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.

         On 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).[8] 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 Superseding Indictment.

         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.

         The 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.

         On July 24, 2003, the Court sentenced Defendant to 262 months of imprisonment with 8 years of unsupervised release.[9] 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.[10]

         After 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).[11] Both times the Court denied Defendant's Motion based on Defendant's status as a career offender.[12]

         On 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 Motion followed.

         I. LEGAL STANDARD

         Before 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.

         Prior 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.

         The FSA 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 ...


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