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United States v. Rafati

United States District Court, N.D. Illinois, Eastern Division

October 7, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MALEK RAFATI, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall, Judge

         Defendant Malek Rafati filed a pro se motion to reduce his sentence pursuant to Amendment 782 of the federal sentencing guidelines [156]. The government filed a response in opposition [159]. Mr. Rafati was given several opportunities to file a reply but did not do so. [165, 166]. For the following reasons, Mr. Rafati's motion is denied.

         I. BACKGROUND

         Pursuant to a plea agreement with the government, Mr. Rafati pleaded guilty to Count One of the Superseding Indictment, which charged him with conspiring with others known and unknown to him to knowingly and intentionally possess with intent to distribute and to distribute cocaine [52, 108]. The plea agreement established Mr. Rafati's base offense level at 38 because he was responsible under the federal sentencing guidelines for in excess of 2, 000 kilograms of cocaine. See U.S.S.G. § 2D 1.1 (c)(1). The base offense level, when combined with a criminal history category of IV, produced an "anticipated advisory sentencing guideline range" between 324 and 405 months' imprisonment. See Dkt. 108, Plea Agreement, ¶ 10(d). By order of this court on November 14, 2012, Mr. Rafati was sentenced to 192 months' imprisonment [120].

         II. LEGAL STANDARD

         Mr. Rafati has filed a motion pursuant to 18 U.S.C. § 3582(c)(2), seeking a reduction in his sentence based on Amendment 782 to the sentencing guidelines. Section 3582(c)(2) provides that:

[I]n the case of 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(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Thus, § 3582(c)(2) allows the court to reduce a previously imposed sentence where a defendant "has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" retroactively. United States v. Taylor, 778 F.3d 667, 672 (7th Cir. 2015).

         Guideline § IB 1.10(a) provides that:

In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.

U.S.S.G. § IB 1.10(a). The relevant amendment here is Amendment 782, which "prohibits retroactive application of its provisions prior to November 1, 2015, " revises the Drug Quantity Table in U.S.S.G. § 2D1.1, and reduces the offense level applicable to certain drug offenses by two levels. See United States v. Hairston, No. 1:00-CR-00042, 2015 WL 3439227, at *1 (N.D. Ind. May 28, 2015).

         III. DISCUSSION

         Mr. Rafati asserts that the plea agreement provides for a base offense level of 38, but that consistent with the application notes to sentencing guideline § IB 1.10(b)(1), his recalculated base offense level should now be a 36. By Mr. Rafati's calculations, the original sentencing guideline of between 324 and 405 months was reduced by 132 months when he pleaded guilty and was sentenced to 196 months' imprisonment. Consequently, with an adjusted base level of 36, Mr. Rafati maintains that a new, fully adjusted sentence would bring his term of imprisonment down 62 months to 130 months. The government, meanwhile, contends that Mr. Rafati is not entitled to relief because: (a) he was sentenced pursuant to a specific, stipulated term of 192 months in a plea agreement entered under Fed. R. Crim. P. 11(c)(1)(C) and thus his sentence was not tied to a particular guideline range; and (b) the drug quantity involved in this case (in excess of 2, 000 kilograms of cocaine), far exceeds the new cocaine drug quantities listed in guideline § 2Dl.l(c).[1] Accordingly, Mr. Rafati's base offense level of 38 remains unchanged regardless of changes to guideline § 2D 1.1(c).

         The court is compelled to agree with the government on both bases. First, "[a] defendant who agrees to a specific sentence in a plea agreement under Rule 11(c)(1)(C) generally is not eligible to receive a reduced sentence under § 3582(c)(2) because that statute does not grant relief for sentences based not on a guidelines range, but on an agreed term." United States v. Scott,711 F.3d 784, 787 (7th Cir. 2013) (citing Freeman v. United States,131 S.Ct. 2685, 2697-98 (2011) (Sotomayor, J., concurring); United States v. Dixon,687 F.3d 356, ...


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