United States District Court, S.D. California
ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING SENTENCE IMPOSED OCTOBER 6, 2014; RECUSING AND DIRECTING CLERK TO RANDOMLY REASSIGN CASE TO NEW JUDGE
LARRY ALAN BURNS, District Judge.
For reasons that defy a comprehensible explanation, the government inserted a provision into the plea agreement and into its Sentencing Summary Chart in this case, by which it committed to ask the Court to impose a reduced sentence if the defendant would waive his "right" to later file a petition to reduce his sentence pursuant to 18 U.S.C. § 3582(c). But the provision was a nonstarter: the defendant never had that "right" to begin with since he pled guilty to transporting more than 4.5 kilograms of methamphetamine across the international border. Although the November 1, 2014 amendments to the Sentencing Guidelines lowered the base offense levels for some drug offenses, the amendments did not change the levels for those who traffic in large amounts of methamphetamine - amounts that exceed 4.5 kilograms. Ignoring the legally inoperative § 3582(c) variance provision in the plea agreement, the defendant's default guideline range as calculated by the parties was 108 to 135 months in custody.
When the defendant appeared for sentencing before this Court on October 6, 2014, represented by attorney Joseph McMullen, the following colloquy occurred:
THE COURT: Do we have a drug report in this case?
Mr. McMullen: Yes, your honor.
THE COURT: And what does it show?
Mr. McMullen: Your honor, what it shows is that it was 96.7% pure, so we're talking about 4.679 kilos with a rounding error of.177, which means that we're two thousandths of a gram from the low end of that rounding error being just above the threshold where it would basically be at 4.5 kilos. So it's significantly less than other defendants, although -
THE COURT: But he's not eligible [for § 3582(c) relief], right?
Mr. McMullen: He's not eligible.
THE COURT: Yea, so she's [the prosecutor who submitted the Sentencing Summary Chart] asking me to depart on that basis in the sentencing summary chart, right, Mr. Tenorio [the prosecutor who was handling the calendar before this court on October 6, 2014], and it doesn't seem I can. The defense concedes he's not eligible even if that change in the guidelines occurs.
After expressing some initial confusion about the issue, Mr. Tenorio eventually under-stood what he was being asked and responded:
Mr. Tenorio: I think that's right. It could be that she [the AUSA who submitted the sentencing summary chart] was - the sentencing summary chart was submitted before the -
THE COURT: Yeah, I'm not faulting her, it's just that it appears to be ...