USA v. Escobar et al

Filing 229

Order on Motion to Reduce Sentence re Crack Cocaine Offense - 18:3582

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
MARIO ANIBAL ESCOBAR,
Defendant.

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3:99-cr-148 JWS
ORDER AND OPINION
[Re:

Motion at docket 200]

I. MOTION PRESENTED
At docket 200, and as modified by the amended motion at docket 223, defendant
Escobar moves for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c) and the
retroactive adjustment in the United States Sentencing Commission’s guidelines
applicable to crack cocaine offenses. The United States opposes the motion at docket
225. Escobar’s reply is at docket 228. Oral argument was not requested and would not
be of aid to the court.
II. DISCUSSION
Escobar pled guilty pursuant to a plea agreement to one count of attempting to
possess cocaine with intent to distribute in violation of 21 U.S.C. § 846(a)(1). He also
pled guilty to one count of unlawful re-entry by a previously removed alien in violation of
8 U.S.C. §§ 1326(a) and (b)(2). The drug conviction was based on Escobar’s attempt to
obtain a package containing 971.6 grams of powder cocaine and 19.6 grams of crack
cocaine.
The drug conviction drove the sentencing calculus under the Guidelines.
Escobar had two prior felony convictions on controlled substance offenses, so he was

subject to the Career Offender Guideline, § 4B1.1. There was evidence to support the
proposition that all of the powder cocaine would have eventually been converted to
crack cocaine, so in the PSR, it was calculated that Escobar’s base offense level after
applying the Career Offender Guideline was 37. However, the court declined to treat
the powder cocaine as crack cocaine, so the resulting base offense level after
application of the Career Offender Guideline was reduced to a level 34. With
acceptance of responsibility pursuant to Guideline § 3E1.1, the offense level was 31.
The court found that Category VI overstated Escobar’s criminal history and departed to
Category V. Combined with the offense level of 31, this provided a Guideline
sentencing range of from 168 to 210 months. Escobar was sentenced to 168 months.
It is important to note that the court did not depart from the Career Offender
Guideline with respect to the offense level. The reduction from level 34 to level 31 via
the three-level adjustment for acceptance of responsibility is expressly sanctioned by
the Career Offender Guideline. The court did, however, depart from the Category VI
criminal history category dictated by the Career Offender Guideline to a Category V.
There is nothing in the new crack cocaine guidelines which would have any effect
on the application of the Career Offender Guideline to the facts of Escobar’s case.
First, regardless of whether the new or the old guidelines for crack are used to calculate
the total drug quantity for which defendant is responsible, Escobar’s Guideline range
would be a level 31 based on application of the Career Offender Guideline after
adjustment for acceptance of responsibility. This is plainly demonstrated by the fact that
had Escobar been sentenced based only for the powder cocaine in the package (i.e.,
assuming there was zero crack cocaine), his Guideline base offense level would not
have changed. Second, there is nothing in the new crack guidelines which has any
bearing on defendant’s criminal history score. The fact that the court eased the
strictures of the Career Offender Guideline with respect to Escobar’s criminal history
category at the time of the original sentencing cannot be used now to yield a still lower
criminal history category through application of the new crack guidelines. Thus,
Escobar’s Guideline sentencing range is not changed by application of the new crack
cocaine guidelines. Furthermore, particularly in light of the seriousness of the offense,
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and the history and characteristics of the defendant, consideration of the factors
identified in 18 U.S.C. § 3553(a) does not support a reduction in Escobar’s sentence.
Escobar relies on a district court decision from Pennsylvania, United States v.
Poindexter, 550 F. Supp. 2d 578 (E.D. PA 2008) to support his request for a lower
sentence. The court does not find this persuasive. First, that case has no precedential
value. Second, there is nothing in the Poindexter case which persuades this court that
the analysis set forth above is incorrect. In Poindexter, the defendant had been
sentenced at a Guideline offense level which was based on the quantity of drugs, not on
the Career Offender Guideline from which the sentencing judge had departed. That is
not what happened in this case. Escobar’s sentence was based on the offense level
determined pursuant to the Career Offender Guideline.

III. CONCLUSION
For the reasons above, the motion at docket 200 is DENIED.
DATED at Anchorage, Alaska, this 5th day of February 2009.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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