United States v. Rivas

808 F. Supp. 2d 603, 2011 U.S. Dist. LEXIS 96253, 2011 WL 4000885

• Court: District Court, S.D. New York
• Decided: August 23, 2011
• Docket: 04 CR. 0802-02 (VM)
• Status: Published

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Defendant Marisol Rivas (“Rivas”) filed this pro se motion to reduce her sentence. On June 5, 2006, Rivas pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. This Court imposed the then-applicable mandatory minimum sentence of 120 months of imprisonment pursuant to 21 U.S.C. § 841(b)(1) (amended Aug. 3, 2010). Rivas now seeks a reduction of her sentence pursuant to 18 U.S.C. § 3582(c)(2) (“§ 3582(c)(2)”) based on recent changes to the United States Sentencing Guidelines applicable to crack cocaine offenses.

Rivas is not eligible for relief under § 8582(c)(2) because her sentence was not “based on a sentencing range that has subsequently been lowered by the Sen tencing Commission,” id., but rather “based on the statutory mandatory minimum sentence.” United States v. Williams, 551 F.3d 182, 185-86 (2d Cir.2009) (denying relief under § 3582(c)(2) where defendant was subject to mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)). Additionally, Rivas is not entitled to the benefit of the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-222, 124 Stat. 2372. The FSA took effect on August 3, 2010, more than four years after Rivas was convicted, and it cannot be applied retroactively. United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam).

ORDER

For the reasons stated above, it is hereby

ORDERED that the motion (Docket No. 55) of defendant Marisol Rivas to reduce her sentence is DENIED.

SO ORDERED.