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.
25, 2016, defendant Sergio Vasquez-Vega filed a 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. 371.) The government has opposed defendant’s motion
on the basis that, since defendant was sentenced based upon
the career offender guideline set forth at U.S.S.G. §
4B1.1 and § 4B1.1 has not been lowered, the advisory
sentencing guidelines would provide for the same offense
level and the same sentencing range as originally calculated
in his case despite application of Amendment 782. (Doc. No.
384, at 3.) The government’s argument is
persuasive. For the reasons set forth below, the court will
deny defendant’s motion for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c).
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).
defendant’s case the presentence report
(“PSR”) found that the amount of controlled
substance attributable to his criminal conduct amounted to
the marijuana equivalent of 1, 870.1 kilograms, which would
have resulted in a base offense level of 32. (PSR at 10.)
However, the PSR found that the defendant was at least 18
years old at the time of the offense of conviction, the
offense of conviction was a felony that was either a crime of
violence or a controlled substance offense, and the defendant
had at least two prior felony convictions for either a crime
of violence or a controlled substance offense. (Id.
at 11.) Therefore, the defendant qualified as a career
offender pursuant to U.S.S.G. § 4B1.1 and a
corresponding adjusted offense level of 37. (Id.)
The PSR then applied a three-level reduction due to the
defendant’s acceptance of responsibility, resulting in
a total adjusted offense level of 34. (Id.) Based
upon this total offense level of 34 and a criminal history
category of VI, the PSR concluded that the advisory
sentencing guidelines called for a sentence of 262 to 327
months imprisonment. (Id. at 15.) The PSR
recommended that the defendant be sentenced to a term of
imprisonment at the low end of the advisory guideline range
─ a term of 262 months imprisonment. (Id. at
November 4, 2013, the court adopted the findings of the
presentence report without change. Nonetheless, the court
departed downward and sentenced defendant to a 170-month term
of imprisonment on the count of conspiracy to distribute and
to possess with intent to distribute heroin, and aiding and
abetting the same in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, and 18 U.S.C. § 2.
(Doc. No. 319, at 1-2.) Thereafter, an amended judgment was
now moves to reduce his sentence. However, Amendment 782 has
not reduced the sentencing guideline range calculation
applicable to defendant because the applicable guideline
range in his case was fixed by reference to the career
offender guidelines. See USSG 4B1.1. While the
amended Drug Quantity Table of U.S.S.G. § 2D1.1 has
lowered his drug guideline to 30, defendant is still subject
to § 4B1.1 and § 4B1.1 has not been amended or
modified since his sentencing. The sentencing court never
made a finding that the career offender status overstated the
seriousness of defendant’s criminal history. See
United States v. Wesson, 583 F.3d 728, 732 (9th Cir.
2009) (holding that defendant who was sentenced as a career
offender was not eligible for sentence reduction but noting
that if career offender status overstated seriousness of
defendant’s criminal history and the sentencing range
was premised on the § 2D1.1 base offense level, then the
“conclusion might be different.”) Accordingly,
the advisory sentencing guidelines continue to call for the
same sentencing range today as it did prior to the adoption
of Amendment 782.
the pertinent sentencing guideline 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). See 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
of the reasons set forth above:
1.) Defendant’s motion for a reduction of sentence
pursuant to 18 U.S.C. § 3582 (Doc. No. 371) is denied;
2.) The Clerk of the Court is directed to terminate defendant
and close this case.
 On May 28, 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. 372.) On
July 19, 2016, the Federal Defender’s Office filed
notice with the court that no supplement to ...