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United States v. Gonzalez-Rodriguez

United States District Court, S.D. California

July 8, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ERNESTO GONZALEZ-RODRIGUEZ, Defendant

For USA, Plaintiff: Cynthia Lynne Millsaps, Michael E Lasater, LEAD ATTORNEYS, U S Attorneys Office Southern District of California, Criminal Division, San Diego, CA; Tara K. McGrath, LEAD ATTORNEY, U S Attorneys Office, Southern District of California, San Diego, CA.

Page 1064

ORDER DENYING MOTION TO REDUCE SENTENCE (18 U.S.C. § 3582(c)(2))

HONORABLE LARRY ALAN BURNS, United States District Judge.

Ernesto Gonzalez-Rodriguez (" Gonzalez" ) has filed a motion to reduce his 87-month sentence for possessing methamphetamine with intent to distribute. Ordinarily, a court can't change a sentence after it has been imposed. But 18 U.S.C. § 3582(c)(2) creates an exception when a defendant was sentenced based on a sentencing range that is subsequently lowered by an amendment to the United States Sentencing Guidelines (" USSG" or " Guidelines" ). That's what happened here. The Court originally sentenced Gonzalez on July 30, 2012, relying on the Guidelines then in effect. About two years later, the U.S. Sentencing Commission approved Amendment 782 to the Guidelines, which lowered the sentencing ranges by 2 levels for most drug offenses -- including Gonzalez's offense. The Commission also voted to make the changes retroactive, which meant that Gonzalez could seek a reduction of his original sentence assuming he was eligible. But the Commission has imposed restrictions on a court's ability to retroactively reduce a drug sentence, and Gonzalez's motion hinges on them.[1]

First, the Commission has decreed that a court may not reduce a defendant's sentence to a term less than the low end of the amended Guideline range. U.S.S.G. § 1B1.10(b)(2)(A) (" Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range . . ." ); Amendment 788 (amending Guidelines § 1B1.10). Standing alone, this restriction isn't particularly problematic for Gonzalez since the amended Base Offense Level for his drug offense starts out 2 levels lower than his original Base Offense Level. But a second limitation puts teeth

Page 1065

in the first one: The amended Guideline range must be determined without regard to any departure or variance that Gonzalez received when he was originally sentenced -- other than a departure for substantial assistance under § 5K1.1. See U.S.S.G. § 1B1.10, comment. (n.1(A)) (new Guideline range is to be determined " before consideration of any departure provision in the Guidelines Manual or any variance" ); comment. (n.3) (making clear that a reduction is not authorized under 18 U.S.C. § 3582(c)(2) if the court's original sentence was outside the Guideline range owing to a departure or variance other than for substantial assistance). In other words, the Court must back out from the revised calculations of Gonzalez's amended sentence range any departure or variance previously given, unless it was for substantial assistance.[2]

The Court originally calculated Gonzalez's Guidelines as follows:

Base Level:

38

Safety Valve downward adjustment (§ 2D1.1(b)(16)):

-2

Acceptance of Responsibility downward adjustment (§ 3E1.1(a)-(b)):

-3

Fast Track departure (§ 5K3.1):

-4

His Adjusted Offense Level was 29, and with a Criminal History Category of I, his advisory Guideline range was 87-108 months. The Court chose not to vary from the Guideline range, but did impose a low end sentence of 87 months.

Under the amended Guidelines, Gonzalez receives a 2-point reduction from his original Base Offense Level, but that credit is offset because the 4-level Fast Track departure originally granted no longer counts:

Base Level:

36

Safety Valve downward adjustment (§ 2D1.1(b)(16)):

-2

Acceptance of Responsibility downward adjustment (§ 3E1.1(a)-(b)):

-3

[BO]Fast Track departure (§ 5K3.1):[EO]

[BO]-4[EO]

Gonzalez's new Adjusted Offense Level

Page 1066

is 31, his Criminal History Category remains at I, and his sentencing range increases to 108-135 months -- higher than his original range of 87-108 months. Because the low end of the amended Guidelines range (108 months) is higher than Gonzalez's original sentence (87 months), he is ineligible for a sentence reduction under Amendment 782. See U.S.S.G. § 1B1.10(b)(2)(A) (" [T]he court shall not reduce the defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range . . . ." )

Gonzalez and many other defendants in the Southern District of California are likely to feel aggrieved by the restrictions § 1B1.10 imposes. In the great majority of drug cases sentenced in this district, defendants are granted a 4-level Fast Track departure or some other departure or variance. In these many cases, the effect of not counting non-qualifying departures and variances will be that the low end of the amended Guideline range is necessarily higher than the original sentence. And this will doom the defendants' eligibility for retroactive reductions of their drug sentences. But that's how § 1B1.10 reads, and how retroactive Guidelines amendments must be applied. The Ninth Circuit agrees with this interpretation. See United States v. Davis, 739 F.3d 1222, 1225-26 (9th Cir. 2014) (interpreting application of § 1B1.10 to revised crack cocaine Guideline); United States v. Pleasant, 704 F.3d 808, 812 (9th Cir. 2013) (amended Guideline range " is derived pre-departure and pre-variance." ); United States v. Mungia-Diaz, No. 14 30032, 606 Fed.Appx. 385, 2015 WL 3956525 at *1 (9th Cir. June 30, 2015) (applying § 1B1.10 to Amendment 782). So do other circuits. See, e.g., United States v. Hogan, 722 F.3d 55, 62 (1st Cir. 2013); United States v. Erskine, 717 F.3d 131, 137-41 (2d Cir. 2013); United States v. Berberena, 694 F.3d 514, 518-19 (3d Cir. 2012); United States v. Diggs, 768 F.3d 643, 646 (7th Cir. 2014); United States v. Anderson, 686 F.3d 585, 588 (8th Cir. 2012); United States v. Colon, 707 F.3d 1255, 1258 (11th Cir. 2013); United States v. Taylor, 743 F.3d 876, 879-80, 408 U.S. App.D.C. 356 (D.C. Cir. 2014).

Because U.S.S.G. § 1B1.10 prohibits the Court from reducing Gonzalez's sentence below the low end of his revised Guidelines range of 108 months, Amendment 782 does not apply to him. For this reason,[3] Gonzalez's § 3582(c)(2) motion is DENIED.

IT IS SO ORDERED.


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