Judge Miriam Goldman Cedarbaum
Fox pleaded guilty, in 2004, to conspiracy and substantive charges of distributing, and possessing with intent to distribute, cocaine and cocaine base in violation of 21 USC §§846, 851, 812, 841(a)(1), and 841(b)(1)(A). The government's prior felony information contained a March 1995 federal criminal conviction and a 1992 conviction, after plea of nolo contendere, in Pennsylvania for possessing and conspiring to possess cocaine with intent to distribute. Fox was sentenced to §841(b)(1)(A)'s 20-year mandatory minimum. Second Circuit affirmed. District court denied Fox reduced sentence under 18 USC §3582(c). Under United States v. Royal, it lacked authority to reduce sentence to a term less than the statutory mandatory minimum that applied when originally sentenced. Fox's claim that the Pennsylvania conviction was improperly used to enhance sentence could not be raised on a §3582 reduction motion and was without merit. Noting that the prior felony information was grounded on an unchallenged federal offense and the 1992 conviction, the court observed that even if Fox was correct as to that conviction's allegedly improper use to enhance his sentence, the court was required to sentence him to a minimum of 20 years in prison.
