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United States v. Rivera

United States District Court, E.D. California

July 17, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
LEONEL RIVERA, Defendant.

MEMORANDUM AND ORDER RE: MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)

WILLIAM B. SHUBB, District Judge.

Before the court is defendant Leonel Rivera's Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2). (Docket No. 240.) For the reasons explained below, defendant does not qualify for a sentence reduction, and the court must therefore deny the motion.

I. Background

On September 20, 1999, a jury returned guilty verdicts on both counts of an indictment charging defendant with conspiracy to distribute methamphetamine and possession of methamphetamine with the intent to distribute it. (Docket No. 115); see 21 U.S.C. § 841(a)(1) & (6). Under § 2D1.1 of the 1998 Sentencing Guidelines, defendant's conviction carried a base offense level of thirty-four, which was increased by two levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1. (Presentencing Report ("PSR") ¶¶ 17, 21-22.) This brought defendant's offense level to thirty-six. (Id. ¶ 23.)

Before sentencing, the government filed an information alleging prior drug felony convictions pursuant to 21 U.S.C. § 851. (Id. ¶ 1.) Defendant's two prior felony convictions for controlled substance offenses, in addition to his latest conviction, classified him as a career offender pursuant to U.S.S.G. § 4B1.1. (Id. ¶ 24.) Under that provision, defendant's offense level automatically became thirty-seven, and he was placed in criminal history category VI. (Id. at 16.) The applicable guideline range was calculated at 360 months to life. (Id.)

The court held a sentencing hearing on April 26, 2000. (Docket No. 142.) It imposed a sentence of 360 months, the bottom of the guideline range.

On December 1, 2014, defendant filed a pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of the Sentencing Commission's passage of Amendment 782. (Docket No. 232.) That amendment retroactively reduces by two points the offense level of defendants convicted of certain drug offenses. See U.S.S.G. App. C, Amend. 782 (2014). The court subsequently appointed counsel for defendant, and counsel filed an amended motion.

II. Discussion

Section 3582(c)(2) provides, in relevant part:

The court may not modify a term of imprisonment once it has been imposed except that... 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 pursuant to 28 U.S.C. 994(o), ... the court may reduce the term of imprisonment....

18 U.S.C. § 3582(c)(2) (emphasis added). The Ninth Circuit has interpreted this language to authorize modifications only "if... the sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission." United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (internal quotation marks and citation omitted).

Amendment 782 modifies § 2D1.1's Drug Quantity Table to lower base offense levels by two points for most federal drug offenders. However, defendant's classification as a career offender caused his sentence to be based on § 4B1.1, not § 2D1.1. See Wesson, 583 F.3d at 731 (holding that § 4B1.1 establishes a sentencing scheme that is "mutually exclusive" of drug offender ranges calculated under § 2D1.1). Accordingly, because defendant's sentence was not based on a sentencing range that has subsequently been lowered by the Sentencing Commission, the court does not have the authority to reduce his sentence. See United States v. Charles, 749 F.3d 767, 770 (9th Cir. 2014) ("[R]etroactive amendments regarding sentences under the drug guidelines do not affect individuals who were sentenced as career offenders."); Zeich v. United States, Civ. No. 1:93-CR-05217 LJO, 2014 WL 6774878, at *2 (E.D. Cal. Nov. 10, 2014) (holding that a defendant sentenced as a career offender was ineligible for a sentence reduction based on Amendment 782).

Defendant also argues he was incorrectly sentenced because the jury failed to find certain facts beyond a reasonable doubt that raised his statutory maximum sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). This line of argument goes beyond the court's authority under § 3582(c)(2), which "authorize[s] only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Dillon v. United States, 560 U.S. 817, 826 (2010).

Moreover, Apprendi was decided two months after defendant was sentenced, and the Ninth Circuit has held that Apprendi does not apply retroactively to cases on collateral review. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002). Even if the court were to construe § 3582(c)(2) as authorizing a collateral attack on defendant's sentence, defendant still could not benefit from the rule announced in Apprendi. This argument is therefore without merit.

IT IS THEREFORE ORDERED that defendant's motion for reduction of sentence pursuant to § 3582(c)(2) be, and the same hereby is, DENIED.


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