Citation Codes Equivalent Citations citation codes Docket Number 01 CR 823 (NRB). Motions Motion to modify : Denied Motion to appoint : Denied Defendant Judges Naomi Reice Buchwald Acts Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Authority To Control; Standards And Schedules — Schedules Of Controlled Substances Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Prohibited Acts A See more information ... Smart Summary Please sign up to generate summary. UNITED STATES OF AMERICA, v. KELBY BATISTA, Defendant. MEMORANDUM AND ORDER NAOMI BUCHWALD, District Judge The defendant has filed for appointment of counsel to assist him in filing a motion for reduction of sentence under the November 1, 2007 amendment to the U.S. Sentencing Guidelines Manual that retroactively lowered the guideline sentencing range for certain categories of offenses involving crack cocaine. Batista plead guilty to a narcotics conspiracy to distribute and possess with intent to distribute cocaine in the form of crack in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(a). He was sentenced on June 3, 2002 to 135 months. Defendant's application for appointment of counsel is denied. Under the leading case of Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989), the merit of a party's claim is a central determination to appoint counsel. Here Batista's claim is lacking in merit. Given that the amount of crack cocaine at issue here exceeds 4.5 kilograms (see Presentence Investigation Report at 4-5 and Sentencing Trancript at 3-4), the amendment to 1B1.10 does not apply and the correct base offense level remains 38. See Amendment 706 to the U.S. Sentencing Guidelines ("Section 2D.1(c)(1) is amended by striking `1.5 KG or more of Cocaine Base' and inserting `4.5 KG or more of Cocaine Base'."). Simply stated, the amendment did not reduce the penalties for anyone who trafficked in excess of 4.5 kilograms of crack cocaine. We note that the Probation Office reached this same conclusion. Defendant's motion for appointment of counsel to assist him in a motion to modify his sentence is therefore DENIED.