United States v. Breen (928 F. Supp. 977, 1996)

ORDER FROM CHAMBERS

SINGLETON, Chief Judge.

I. INTRODUCTION

David Breen (“Breen”) has served approximately 32 months of his 48-month prison sentence for conspiring to manufacture marijuana and moves for resentencing pursuant to 18 U.S.C. § 3582(c)(2) (1994), arguing that a 1995 amendment to the United States Sentencing Guidelines (“Sentencing Guidelines”) reduces his sentence. Docket Nos. 1149 & 1165. The Government opposes the motion (Docket No. 1154) and the United States Magistrate Judge assigned to this case has provided reports and recommendations. Docket Nos. 1168, 1171, & 1173 (initial, revised, and final); see also Docket Nos. 1169 & 1170 (objection and response to initial report and recommendation). The Court has reviewed the record, de novo, and in the exercise of independent judgment, denies Breen’s motion for resentencing.

II. SENTENCING

On April 12, 1993, in accordance with a plea agreement, David Breen plead guilty to and was convicted of one count of conspiring to manufacture marijuana in violation of 21 U.S.C. § 846 (1994). Docket No. 798; see Plea Agreement at Docket No. 796; see also Fed.R.CrimP. 11(e)(2). The parties agreed that 127 marijuana plants were involved in the offense. Docket No. 796. For all offenses involving more than 50 marijuana plants, the Sentencing Guidelines in effect assigned a weight value of one kilogram to each marijuana plant involved. USSC & G § 2D1.1 (1992). Thus, at the imposition of sentencing on July 16, 1993, it was determined that 127 kilograms of marijuana were involved in Breen’s offense, which resulted in a Sentencing Guideline Offense Level 26. Docket No. 890; USSC & G § 2D1.1. Breen had no prior criminal history, which placed him in a Criminal History Category I. See USSC & G § 4A1.1; USSC & G § 5, Pt. A (Sentencing Table). The Guideline Sentencing range was 57-71 months (see June 23, 1993, Presentenee Report; USSC & G § 5, Pt. A), but because an offense involving more than 100 marijuana plants carries a statutory mandatory minimum sentence of 60 months (21 U.S.C. § 841(b)(1)(B) (1994)), the appropriate sentencing range was 60-71 months. Id. The Court imposed the minimum sentence, 60 months, and then departed 12 months based upon Breen’s substantial assistance to the Government and acceptance of responsibility. Docket No. 890; see USSC & G §§ 3E1.1, 5K1.1. Breen has served approximately 32 months of his 48-month sentence and seeks to be released for time served, arguing that certain amendments to the Sentencing Guidelines entitle him to a reduced sentence.

III. DISCUSSION

As part of the 1994 amendments to the Sentencing Guidelines, a “safety valve” provision was added. USSC & G § 5C1.2 (1994). This provision authorizes the Court to deviate, in certain circumstances, from imposing the statutory mandatory minimum sentence. Id. The safety valve provision is to be applied prospectively. The Sentencing Guidelines were again amended, effective November 1, 1995, and Amendment 516, which establishes a new conversion ratio for the weight equivalency of marijuana plants, is to be applied retroactively. See USSC & G § lBl.l.lO(c). Sentences pursuant to Amendment 516, however, are subject to the mandatory minimum sentences imposed by statute. There are two significant issues in this case. First, whether the passage of Amendment 516 provides the Court with jurisdiction to resentence Breen although his sentence will not change by application of Amendment 516 because Breen was sentenced pursuant to a mandatory minimum sentence which is longer than the Amendment 516 sentence. Second, whether application of the safety valve provision, which is a prospective amendment, provides an independent basis for jurisdiction to resentence.

A The Court’s Jurisdiction to Resentence Pursuant to Amendment 516

The Court has jurisdiction to resentence a defendant whose term of imprisonment is based on a sentencing range that has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). 18 U.S.C. § 3583(e)(2) (1994). However, the reduction must be consistent with the policy statements issued by the Sentencing Commission. Id. The linchpin of the Court’s inquiry is whether the Court should exercise its jurisdiction to resentenee pursuant to a retroactive Sentencing Guideline amendment when application of such amendment, standing alone, fails to produce a reduction in sentence.

Amendment 516 reduced the weight equivalency for marijuana plants from one kilogram per plant to 100 grams per plant, regardless of the number of plants involved. USSC & G § 2Dl.l(e) (1995). Since it has been determined that 127 marijuana plants were involved in the commission of Breen’s crime, pursuant to Amendment 516, the offense level should be determined based upon 12.7 kilograms of marijuana. Under the Sentencing Guidelines, 12.7 kilograms of marijuana corresponds to Offense Level 16, whereas 127 kilograms of marijuana corresponds to Offense Level 26. USSC & G §§ 2Dl.l(c)(7) and (12). Breen’s Sentencing Guideline range was 57-71 months under the 1992 Sentencing Guidelines. See June 23, 1993, Presentence Report; USSC & G § 5, Pt. A The parties agree that Breen’s offense level, if calculated pursuant to Amendment 516, will be Offense Level 13, which carries a 12-18 month sentencing range.

Although the parties agree that Breen is at Offense Level 13 under Amendment 516, the parties disagree as to the correct application of Amendment 516 given the imposition of a mandatory 60-month minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B). The Government contends that although the Court may exercise jurisdiction to resentence Breen because Amendment 516 is to be applied retroactively, resentencing will not change Breen’s term of incarceration and thus the Court should decline Breen’s request for resentencing. Docket No. 1154 (noting that Breen is subject to the 60-month mandatory minimum sentence contained in 21 U.S.C. § 841 and that where there exists a conflict between a Sentencing Guideline offense level and a sentence required by the offense statutes, the offense statutes supersede the Sentencing Guidelines) (citing USSC & G § 5G1.1 and United States v. Valente, 961 F.2d 133, 134 (9th Cir.1992)). As a result, continues the Government, the mandatory minimum sentence limits the Court’s authority to impose a sentence less than 60 months. Id. (citing 18 U.S.C. § 3552(e) and Valente, 961 F.2d at 134). Conducting a resentencing of Breen pursuant to Amendment 516, argues the Government, would needlessly expend judicial resources because Breen’s sentence will not change.

Breen argues that the 60-month mandatory minimum sentence provided in 21 U.S.C. § 841(b)(1)(B) does not prevent the Court, at its discretion, from sentencing Breen under the amended Sentencing Guidelines. Docket Nos. 1165 & 1169. Pursuant to 18 U.S.C. § 3582(c)(2), he argues, the Court has jurisdiction to resentence since Breen’s term of imprisonment is based upon a sentencing range which has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). Id. Countering the Government’s position that due to the mandatory minimum sentence, his sentence will not change upon resentencing, Breen argues that once the Court accepts jurisdiction to resentence, he is entitled to resentencing pursuant to the current Sentencing Guidelines, which, as applied, significantly reduce his sentence. Id. Thus, it is Breen’s position that the Court has jurisdiction to resentence regardless of whether Amendment 516, standing alone, changes Breen’s sentence. Id.

The Sentencing Guidelines and ease law support the Government’s position that the mandatory minimum sentence controls Breen’s sentence. “When a statute requires a different sentence than that set by the Sentencing Guidelines, the statute controls.” United States v. Valente, 961 F.2d 133, 134 (9th Cir.1992); United States v. Williams, 939 F.2d 721, 725 (9th Cir.1991); and United States v. Sharp, 883 F.2d 829, 831 (9th Cir.1989); which adopt United States v. Donley, 878 F.2d 735, 740-41 (3rd Cir.1989); United States v. Stewart, 879 F.2d 1268, 1272 (5th Cir.1989); and United States v. Savage, 863 F.2d 595 (8th Cir.1988). The Sentencing Guidelines specifically provide,