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United States v. Cano

United States District Court, E.D. California

May 1, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
EDUARDO PANO CANO, Defendant.

ORDER DENYING MOTION TO REDUCE SENTENCE

ANTHONY W. ISHII, District Judge.

I. Introduction

Defendant, Eduardo Pano-Cano, is a prisoner serving a sentence based on convictions for (1) conspiracy to distribute methamphetamine in violation of Title 21 of the United States Code Sections 846 and 841(a)(1), and (2) manufacturing of methamphetamine in violation of Title 21 of the United States Code Section 841(a)(1). See Doc. 230. On May 10, 2004, Defendant was sentenced to a term of 188 months as to each count, to be served concurrently. Doc. 230. The Bureau of Prisons ("BOP") has calculated Defendant's release date as October 12, 2015. See http://www.bop.gov/inmateloc/, last accessed Apr. 24, 2015. Defendant has moved for a sentence reduction pursuant to Title 18 of the United States Code Section 3582(c)(2), based on Amendment 782 to the United States Sentencing Guidelines ("USSG"). Amendment 782 revised the Drug Quantity Table in USSG § 2D1.1 and reduced by two levels the offense level applicable to many drug trafficking offenses. The Sentencing "Commission has determined that Amendment 782, subject to the limitation in USSG § 1B1.10(e) delaying the effective date of sentence reduction orders until November 1, 2015, should be applied retroactively." Amendment 782. Despite the restriction on the effective date of Amendment 782, Defendant moves for reduction of his sentence and immediate release.

Defendant asks the court to ignore the effective date limitation imposed by USSG § 1B1.10(e) for four reasons: (1) USSG § 1B1.10(e) impermissibly considers rehabilitative or correctional treatment; (2) the November 1, 2015 effective date is arbitrary and capricious; (3) USSG § 1B1.10(e) violates the doctrine of separation of powers; and (4) the stated purpose of the one-year delay is not effectuated when applied to a removable alien. For the following reasons, Defendants motion for sentence reduction will be denied.

II. Discussion

The Court will first address the appropriateness of a reduction pursuant to the relevant guidelines and policy statements, then the Court will consider Defendant's challenge to USSG 1B1.10(e), precluding courts from reducing a term of imprisonment pursuant to Amendment 782 before November 1, 2015.

A. Eligibility for Section 3582(c)(2) Reduction

Title 18 of the United States Code, Section 3582(c)(2) authorizes district courts to modify an imposed sentence "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission... if such reduction is consistent with applicable policy statements issued by the Sentencing Commission." See United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013). USSG § 1B1.10(a) provides that where "a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered... the court may reduce the defendant's term of imprisonment...."

Here, Defendant's initial base offense level was calculated at level 38 and his criminal history was calculated at category II. The Court applied a three-level downward departure for acceptance of responsibility pursuant to USSG § 3E1.1 (a) and (b), resulting in a total offense level of 35. Defendant's Guideline Range was 188 to 235 months. Applying the new base offense level under the Drug Quantity Table found in USSG § 2D1.1, as modified by Amendment 782, Defendant's revised base offense level would be 36. Applying the same three-level downward departure for acceptance of responsibility, Defendant's revised total offense level would be 33. As a result, Defendants revised Guideline Range is 151 to 188 months.

USSG § 1B1.10(b)(2)(C) prohibits a court from reducing a term of imprisonment below the term that the defendant has already served. USSG § 1B1.10(e)(1) specifies that "[t]he court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court's order is November 1, 2015, or later." Defendant will have completed his term of 188 months - according to the BOP calculation - on October 12, 2015. Reducing Defendant's term of imprisonment below 188 months on November 1, 2015, would reduce the term of imprisonment below the term that Defendant already served. A reduction of term is therefore prohibited by the sentencing guidelines. Defendant's motion for reduction of sentence will therefore be denied on that basis.

B. Eligibility for Reduction Prior to November 1, 2015

If a reduction based on Amendment 782 could be granted effective today - rather than November 1, 2015 - Defendant would be eligible for immediate release. See USSG § 1B1.10(e); Defendant's Motion to Reduce Sentence ("MTRS") at 6. However, because Defendant's release date is scheduled of October 12, 2015, he sees no benefit from Amendment 782. Defendant therefore asks this Court to disregard the one-year delayed effective date of Amendment 782 and grant him immediate release. Requests nearly identical to Defendant's have been considered by several district courts around the nation, all with the same outcome. A district court may not reduce a defendant's sentence based on Amendment 782 prior to November 1, 2015. E.g. United States v. Navarro, 2015 WL 1814314 (E.D. Cal. Apr. 20, 2015); United States v. Espinoza, ___ F.Supp.3d ___, 2015 WL 736396 (M.D. Fla. Feb. 20, 2015); United States v. Estanislao, ___ F.Supp.3d ___, 2015 WL 867560 (M.D. Fla. Mar. 2, 2015); see also United States v. Beasley, 2014 WL 6694058, *2 (N.D. Cal. Nov. 26, 2014). This Court agrees with the reasoning of those cases and will come to the same outcome. However, this Court will briefly explain why each of Defendant's arguments fail.

i. The Extent and Significance of the Court's Consideration of Rehabilitation and Correction in Considering a Motion Pursuant to 18 U.S.C. § 3582(c)(2)

Defendant's first argument is premised on the impropriety of this Court's consideration of rehabilitation or correction in deciding the length of a term of imprisonment. MTRS at 7 (citing 18 U.S.C. § 3582(a) ("[I]mprisonment is not an appropriate means of promoting correction and rehabilitation.")). Defendant draws the Court's attention to Tapia v. United States, ___ U.S. ___, 131 S.Ct. 2382, 2389-2390 (2011), for the proposition the sentencing court should not consider correction or rehabilitation in deciding the fact or duration of confinement. The Supreme Court in Tapia determined that considering the sentence duration required for placement in a 500 Hour Drug Treatment Program in determining the appropriate duration of a term of imprisonment was an impermissible consideration of rehabilitation by the sentencing court. Tapia, 131 S.Ct. at 2392. It ...


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