United States District Court, N.D. Illinois
April 5, 2004.
UNITED STATES OF AMERICA, Plaintiff,
THELMA ZULIMA, Defendant
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is defendant's motion to reduce her term of
imprisonment. For the following reasons, the motion is denied.
Buitrago was convicted in 1992 of conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 846. At
sentencing, on March 26, 1993, the court found that she was responsible
for 350 kilograms of cocaine. The drug quantity table in the version of
U.S.S.G. § 2D1.1(c) then in effect set a base offense level of 38 for
that amount of cocaine. See U.S.S.G. § 2D1.1(c), U.S.S.G.
App. C, Amend. 505 (1994) (base offense level for 150 to 499 kilograms of
cocaine is 38). After finding that Buitrago's trial testimony constituted
perjury, the court enhanced her offense level by the prescribed two
points for obstruction of justice. See U.S.S.G. § 3C1.1.
With an adjusted offense level of 40, then, we imposed a term of
imprisonment at the lowest end of the Guideline range, 292 months.
Buitrago now moves the court to reduce the term of her imprisonment,
arguing that Amendment 505 to U.S.S.G. § 2D1.1(c) should be applied
retroactively to reduce her sentence. Amendment 505, effective November
I, 1994 and retroactive pursuant to U.S.S.G. § 1B1.10, set
the upper limit of the base offense levels listed in § 2D1.1(c)'s
drug quantity table at a 38. See U.S.S.G. App. C, Amend. 505
(1994). Prior to the amendment, if a defendant was responsible for
between 150 and 499 kilograms of cocaine, he would have had a base
offense level of 38; for 500 to 1499 kilograms, he would have had a base
offense level of 40; and for 1500 kilograms or more, the base offense
level would have been 42. See id. The amendment did away with
levels 40 and 42 and set the ceiling at level 38 for any defendant
responsible for 150 kilograms or more of cocaine. The amendment did not
alter the drug quantities and corresponding base offense levels below 38.
The amendment does not apply to Buitrago's sentence. The pre-amendment
drug quantity table gave an individual responsible for 350 kilograms of
cocaine, such as Buitrago, a base offense level of 38. The post-amendment
table does nothing to change this the base offense level for that
quantity of cocaine is still 38. The amendment only changed the
base offense level for defendants responsible for 500 kilograms or more
of cocaine, by reducing their base offense levels, from a 40 or 42, to a
38 as well. Buitrago argues, however, that her offense level was a 40, and
therefore the amendment does apply to her sentence. Her offense level
indeed was a 40, but that was her adjusted offense level after
the obstruction enhancement. And Amendment 505 does not address adjusted
offense levels. It only changed certain base offense levels set
out in the drug quantity table at § 2D1.1c) (see United States
v. Garcia, 1997 WL 548562, at *2 (N.D. Ill. 1997) ("Amendment 505
addresses base offense levels, not adjusted offense levels.");
United States v. Hasan, 245 F.3d 682, 687 (8th Cir. 2001)
("Amendment 505 . . . only affected base offense levels
greater than 38."), and, as explained above, those changes do not affect
Accordingly, Buitrago's motion for a reduction of her term of
imprisonment is denied.
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