EDNY Judge Denies Full-Blown Resentencing Under Crack Retroactivity Amendment

In what appears to be a case of first impression in this circuit, a district court in the EDNY has rejected a defendant's request for a de novo resentencing under the crack retroactivity amendment (which would have allowed the defendant the full benefit of Booker/Kimbrough/Gall developments).  In United States v. Cruz, 02 CR 725 (CPS), 2008 WL 539216 (E.D.N.Y. February 27, 2008), the court pointed out that 18 U.S.C. § 3582(C)(2) - which permits a district court to modify the sentence of a defendant whose term of imprisonment was based on a sentencing range that has since been lowered by the Sentencing Commission - is jurisdictional, and requires that "any reduction be consistent with applicable policy statements issued by the Sentencing Commission."  The court went on to hold that "[s]ince section 3582(c)(2)'s requirement that a district court consider whether its reduction is consistent with the Sentencing Commission's Policy Statement is a limitation on a district court's jurisdiction, the Supreme Court's recent Sixth Amendment sentencing jurisprudence, including Booker, is not applicable and the district court remains limited by the Policy Statement."  As discussed here, a court in the SDNY had queried whether the Sentencing Commission could foreclose a full-blown resentencing under these circumstances.  The Cruz decision is therefore a disappointment, though hardly a surprise.