United States District Court, E.D. California
ORDER DENYING DEFENDANT’S MOTION FOR REDUCTION
OF SENTENCE PURSUANT TO 18 U.S.C. § 3582(C) (Doc. No.
377)
On June
6, 2016, defendant Hugo Toscana-Cazares filed a pro se motion
under 18 U.S.C. § 3582(c)(2), seeking a reduction in his
previously imposed sentence based upon Amendment 782 to the
United States Sentencing Guidelines (“U.S.S.G.”).
That amendment revised the Drug Quantity Table in U.S.S.G.
§ 2D1.1 and reduced by two levels the offense level
applicable to many federal drug trafficking offenses. (Doc.
No. 377.) The government has opposed defendant’s motion
on the basis that, since the drug quantity involved in his
offense of conviction was more than 90 kilograms of heroin,
the advisory sentencing guidelines would provide for the same
offense level and the same sentencing range as originally
calculated in defendant’s case despite application of
Amendment 782. (Doc. No. 381, at 4.)[1] The government’s
argument is persuasive. The court will therefore deny
defendant’s motion for a reduction of sentence under 18
U.S.C. § 3582(c).
Section
3582(c)(2) authorizes district courts to modify a previously
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.” United States v. Dunn,
728 F.3d 1151, 1155 (9th Cir. 2013). Effective November 1,
2014, the U.S. Sentencing Commission promulgated Amendment
782 to the U.S.S.G., which generally revised the Drug
Quantity Table and chemical quantity tables across drug and
chemical types. The Commission also voted to make Amendment
782 retroactively applicable to previously sentenced
defendants. However, “[a] reduction in the
defendant’s term of imprisonment is not consistent with
this policy statement and therefore is not authorized under
18 U.S.C. § 3582(c)(2) if . . . an amendment listed in
subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10 (a)(2)(B). A district court’s authority
to modify a sentence pursuant to an amendment to the advisory
guidelines is constrained by the Sentencing Commission.
Dillon v. United States, 560 U.S. 817, 826 (2010).
In
defendant’s case the presentence report
(“PSR”) found the amount of controlled substance
attributable to him amounted to 135 kilograms of heroin. (PSR
at 10.) Applying the Drug Quantity Table in §
2D1.1(c)(4) of the 2010 Guidelines Manual then in effect, the
PSR applied a base offense level of 38 to defendant
“because the amount of heroin involved in the offense
is at least 30 kilograms.” (Id. at 10.) The
PSR then applied a three-level reduction due to the
defendant’s acceptance of responsibility, resulting in
a total adjusted offense level of 35. (Id. at
10-11.) Based upon this total offense level of 35 and a
criminal history category of I, the PSR concluded that the
advisory sentencing guidelines called for a sentence of 168
to 210 months imprisonment. (Id. at 15.) The PSR
recommended that the defendant be sentenced to a term of
imprisonment of 149 months, below the low end of the advisory
sentencing guideline range. (Id. at 23.)
On
November 28, 2011, the court sentenced defendant to a
149-month term of imprisonment, for one count of conspiracy
to distribute and to possess with intent to distribute
heroin, and aiding and abetting under 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, and 18 U.S.C. § 2,
with that sentence to run concurrently with any state
sentence. (Doc. No. 255, at 1-2.)
Defendant
now moves to reduce his sentence. However, Amendment 782 has
not reduced the guideline range applicable to defendant since
the amount of controlled substance attributable to him was
found to be 135 kilograms of heroin. Under the amended Drug
Quantity Table of U.S.S.G. § 2D1.1, the base offense
level for an offense involving more than 90 kilograms of
heroin remains at a level 38. After applying the same
three-level reduction for acceptance of responsibility,
defendant’s total adjusted offense level remains 35. At
the established criminal history category of I,
defendant’s advisory sentencing guideline range
continues to call for a sentence of 168 to 210 months in
prison, the same as it did prior to the adoption of Amendment
782.
Because
the pertinent amendment does not result in a different
advisory sentencing guideline range, the defendant is not
entitled to a reduction in his sentence pursuant to 18 U.S.C.
§ 3582(c). United States v. Leniear, 574 F.3d
668, 673-74 (9th Cir. 2009) (“[A] reduction in the
defendant’s term of imprisonment . . . is not
consistent with this policy statement if . . . an amendment .
. . is applicable to the defendant but the amendment does not
have the effect of lowering the defendant’s applicable
guideline range [.]”).
For all
of the reasons set forth above:
1.)
Defendant’s motion for a reduction of sentence pursuant
to 18 U.S.C. § 3582 (Doc. No. 377) is denied; and
2.) The
Clerk of the Court is directed to terminate defendant and
close this case as to him.
IT IS
SO ORDERED.
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Notes:
[1] On June 8, 2016, the court granted the
Federal Defender’s Office ninety days to supplement
defendant’s pro se motion or to notify the court that
it did not intend to file a supplement. (Doc. No. 379.) On
July 1, 2016, the Federal Defender’s Office filed
notice with the court that no supplement to the motion would
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