UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
September 22, 2010
UNITED STATES OF AMERICA PLAINTIFF,
DAVID JONATHAS DEFENDANT.
The opinion of the court was delivered by: Dickinson R. Debevoise U.S.S.D.J.
Petitioner, David Jonathas, moves to modify his sentence pursuant to 18 U.S.C. §3582. On September 10, 2007, pursuant to a plea agreement, Petitioner entered a guilty plea to Count Two of an indictment which charged that on or about May 9, 2006, Petitioner distributed and possessed with intent to distribute five grams or more of cocaine base. The plea agreement stipulated that Petitioner distributed and possessed with intent to distribute 32.4 grams of cocaine base and that the relevant conduct for the offense includes a total of approximately 69.8 grams of cocaine base or "crack cocaine."
Petitioner was sentenced on March 17, 2008. The PSR calculated a Base Offense Level of 30 and, concluding that Petitioner was a Career Offender, set forth an advisory range of 188 to 235 months. Petitioner objected to the Career Offender classification and argued that with a Criminal History Category of III, a Base Offense Level of 30 and a 3 level reduction for acceptance of responsibility, his Offense Level was 27 and the sentencing range 87-108 months. The Court accepted Petitioner's argument and sentenced him to 87 months.
On November 1, 2007 the Sentencing Commission modified the cocaine base offense level by lowering the Base Offense Level by two levels. The Sentencing Commission voted to make this amendment retroactive. 18 U.S.C. § 3582(c)(2) provides that 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 pursuant to 28 U.S.C. § 994(0) may move for a reduction of his term of imprisonment.
The flaw in Petitioner's present motion is that when he was sentenced on March 17, 2008, he was given the benefit of the Sentencing Commission's previously adopted reduction in the cocaine base Base Offense Level. He is not entitled to this adjustment a second time.
What is evident from Petitioner's moving papers is that he relies upon United States v. Booker, 543 U.S. 220 (2005) to seek a variance from the Guidelines. In support of this application he has attached to his moving papers a variety of documents demonstrating that he has taken full advantage of the course and program offerings of the prison system. He will most likely be a far more accomplished and understanding person when he is released into the community. Although Booker holds that the Guidelines are advisory and not mandatory, 18 U.S.C. § 3582(c)(2) does not authorize a resentencing. It only permits modification of the term of imprisonment in the very limited circumstances to which it applies.
Consequently Petitioner's petition must be denied. The Court will file an order implementing this opinion.*fn1