The opinion of the court was delivered by: Honorable Paul L. Maloney
Magistrate Judge Joseph G. Scoville
Denying 28 U.S.C. § 3582(c)(2) Motion to Reduce Sentence under U.S.S.G. Ams. 505 & 591;
Denying Defendant-Petitioner's Motion to Hold Aforementioned Motion in Abeyance
In February 1993, a criminal complaint was issued against Juan Reyes in this district and he was arrested, whereupon the complaint and affidavit were unsealed and a grand jury issued an indictment. See Doc. Nos. 1-5. Reyes pled not guilty, and Magistrate Judge Hugh W. Brenneman ordered him held pending trial. See Doc. Nos. 6-7 and 9. In April and July 1993, respectively, a grand jury issued a superseding indictment and a second superseding indictment, adding other defendants. See Doc. Nos. 21 and 91. On June 4, 1993, the government filed a supplemental notice pursuant to Title 21 alleging that (1) as a direct and causal result of the drug-distribution conspiracy, a man named Grant Cooper died of a cocaine overdose, and (2) Reyes had a prior felony drug conviction, subjecting him to statutory mandatory minimum of life in prison if convicted.
United States District Judge Richard Enslen presided over a seven-day jury trial in October 1993. See Unnumbered Docket Entries following 178. The jury found Reyes guilty of both counts:
Count 1, Conspiracy to Distribute Heroin, Cocaine and Marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 Count 2, Money laundering, in violation of 18 U.S.C. § 1956(1)(A)(I) (conducting a financial transaction by way of "Western Union" electronic money transfer affecting interstate commerce)
See Doc. No. 189 (verdict as to Reyes). Reyes submitted a sentencing memorandum, see Doc. No. 234. Judge Enslen found a base offense level of 43 and added two levels for possession of a firearm during the drug-distribution conspiracy, four levels for being a leader or organizer of the conspiracy, and two levels for obstructing justice, see Reyes' Motion at 3 (citing PSR at 11). Finding Reyes to be a career criminal and finding that the conspiracy caused Cooper's death, see PSR at 15, Judge Enslen sentenced him on February 23, 1994 to a mandatory term of life imprisonment on count 1 (the drug offense) and a concurrent term of 240 months imprisonment on count 2 (the financial transaction offense), followed by concurrent terms of supervised release of 10 years on count one and 3 years on count two, as well as a $20,000 fine on count one and $5,000 fine on count two. See Doc. No. 235 (minutes of sentencing hearing) and Doc. No. 241 (Judgment of Conviction).*fn1
Sixth Circuit Affirms. Reyes timely appealed to the Sixth Circuit Court of Appeals, see Doc. No. 246, and the appeal was assigned Appeal No. 94-1284, see Doc. No. 261. The Sixth Circuit affirmed Reyes' conviction and sentence by order dated July 5, 1995, see Doc. Nos. 308 (order) and 312 (mandate). In December 1995, Reyes timely filed a petition for writ of certiorari with the United States Supreme Court, which denied the petition in March 1996, see Doc. Nos. 314 & 315.
Judge Enslen Denies Reyes's First Habeas Petition, But Grants COA on First of Five Claims. On February 28, 1997, Reyes filed a motion for post-conviction relief under 28 U.S.C. § 2255. Reyes filed his opening brief in March 1997 and the government filed opposition in April 1997, see Docs. 331-332 and 341. On May 23, 1997, Judge Enslen denied Reyes's section 2255 motion, see Doc. Nos. 343-344. (Reyes's reply brief was received on May 30, 1997, see Doc. No. 345.) On June 2, 1997 Reyes filed a motion for reconsideration, which Judge Enslen denied on June without receiving opposition or reply briefs or hearing oral argument, see Doc. Nos. 348 & 349.
In September 1997, Reyes appealed the denial of his motion for reconsideration, and the appeal was assigned No. 97-1966, see Doc. Nos. 354 & 356. In October 1997, Reyes, proceeding pro se, requested a certificate of appealability ("COA"); Judge Enslen granted the COA as to the first issue raised in Reyes's petition but not the other issues, see Doc. Nos. 362 & 363. Reyes moved for Judge Enslen to reconsider the partial denial of his COA request; after receiving briefs, see Doc. Nos. 357-366, Judge Enslen declined reconsideration on March 3, 1998. See Doc. No. 367.
On June 19, 1998, the Sixth Circuit dismissed Reyes's appeal (from Judge Enslen's refusal to reconsider the denial of his § 2255 motion) for lack of jurisdiction. See Docs. 388 and 391.
Reyes's First Motion for Downward Departure. In December 2002, Reyes filed a motion for downward departure (reduction in sentence) pursuant to 18 U.S.C. § 3582(c)(2); he argued that retroactive Amendment 505 would have resulted in a lower sentence if it had been in effect at the time of his sentencing. See Doc. No. 473. The government filed an opposition brief explaining that the life sentence was mandated by Title 21 U.S.C. given the court's findings made at sentencing and the government's supplemental notice, see Doc. No. 484. Finding that Amendment 505 merely reduced offense levels based on drug quantity and so did not apply here, Judge Enslen denied Reyes's motion for reduction of sentence by order issued February 14, 2003, see Doc. No. 487 (no opinion). On February 28, 2003, Reyes filed a motion to amend judgment, which Judge Enslen denied by order issued March 10, 2003, see Doc. Nos. 488 and 491 (no opinion)
Reyes appealed to the Sixth Circuit from the denial of his sentence-reduction motion, and from the denial of his motion to amend that denial. See Doc. Nos. 490 & 495. The appeals were assigned Sixth Circuit numbers 03-1282 and 03-1408, see Doc. Nos. 493 & 499. In December 2003, the Sixth Circuit affirmed Judge Enslen's denial of the first sentence-reduction motion and his denial of the motion to amend, stating that
[a] guideline sentence is generally governed by statute when the statutory minimum exceeds the otherwise applicable guideline range. See U.S.S.G. § 5G1.1(b); United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir. 1995). Thus, the court acted within its discretion by denying Reyes' motion, as the retroactive application of Amendment 505 would not have affected his sentencing guideline range.
Reyes also argues that the district court's application of § 841(b)(1)(A) violated the holding in Apprendi v. New Jersey, 530 U.S. 466, 490 . . . (2000). However, it is now clear that Apprendi is not retroactively applicable, even to cases on initial collateral review. See Goode v. United States, 305 F.3d 378, 382 (6th Cir. ) . . . .
US v. Reyes, 83 F. App'x 796, 797 (6th Cir. Dec. 11, 2003) (C.J. Boggs, Batchelder, Sutton).
Reyes's Motion for Writ of Audita Querela. In January 2005, Reyes filed a motion for a writ of audita querela and a motion for appointment of counsel, contending that US v. Booker (U.S. 2005) and Apprendi (U.S.) prohibited the court from basing his sentence on drug quantities that had not been specifically found by the jury, see Docs 520-521. The government filed an opposition brief, see Doc. 524, and Judge Enslen denied both motions by order issued March 31, 2005, see Doc 526. Reyes timely attempted to appeal, see Doc 532, but Judge Enslen denied a COA on June 9, 2003, see Doc 530. The Sixth Circuit affirmed on June 19, 2006, see Docs 539 (opinion) & 540 (mandate).
The Instant Motion for Reduction of Sentence under Guideline Amendments 505 and 591. On October 13, 2009, Reyes filed this 18 U.S.C. § 3582(c)(2) motion to reduce his sentence through retroactive application of Amendments 505 and 591 to the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines"); he filed a supplement on October 16, 2009. See Docs 543-544.
On November 9, 2009, in response to an order of this court, Reyes filed a Notice explaining that he is seeking reduction of sentence through retroactive application of Guideline Amendments 505 and 591, not Amendments 706 and 711 as the court initially believed. See Doc 546 at 1-2. Reyes notes that Amendment 505 (which became effective November 1, 1997) and Amendment 591 (which became effective November 1, 2000) were both expressly made retroactive by U.S.S.G. § 1B1.10(a). See Doc 546 at 2.
By order issued December 22, 2009 this court directed the government to file a brief in response to Reyes's latest sentence-reduction motion. The government timely filed that response brief on Monday, February 22, 2010. For the reasons that follow, the court will deny Reyes's ...