United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER’S MOTION TO REDUCE SENTENCE UNDER U.S.S.G.
AMENDMENT 782 AND DENYING PETITIONER’S REQUESTS FOR
COUNSEL AND LEAVE TO PROCEED IFP (ECF NOS. 40, 46)
LAWRENCE J. O’NEILL UNITED STATES CHIEF DISTRICT JUDGE
the Court is Petitioner Israel Garrido-Hernandez’s
pro se motion to reduce his sentence pursuant to
U.S.S.G. §1B1.10(b)(1) and Amendment 782 (“the
Amendment”) to the United States Sentencing Guidelines,
which revised the Drug Quantity Table in § 2D1.1 and
reduced by two levels the offense level applicable to many
drug trafficking offenses. See ECF No. 40. The
Government opposes this motion on the basis that the
Petitioner is not eligible for a reduction under §
1B1.10. See ECF No. 41. The Federal Defender’s
Office has filed a notice declining to supplement
Petitioner’s motion for a sentence reduction. ECF No.
45. Petitioner subsequently requested appointment of counsel
and leave to proceed in forma pauperis
(“IFP”). ECF No. 46. Upon review of the
parties’ briefing, the record in the case including the
Probation Office’s Presentence Report
(“PSR”), and the relevant law, the Court will
deny Petitioner’s motion for a sentence reduction, his
request for counsel, and his application to proceed IFP.
March 31, 2014, Petitioner pleaded guilty to a two-count
Superseding Information; Count 1 charged him with Possession
of Document-Making Implement, in violation of 18 U.S.C.
§ 1028(a)(5), and Count 2 charged him with Possession of
Methamphetamine with Intent to Distribute, in violation of 21
U.S.C. § 841(a)(1). See ECF Nos. 21, 22; PSR
to the PSR, the amount of actual methamphetamine attributed
to Petitioner was 57.3 kilograms. See PSR ¶ 39.
Pursuant to §2D1.1(a)(5), Petitioner’s base
offense level was 32 (because his offense involved at least
50 grams but less than 150 grams of actual methamphetamine),
see Id . at ¶ 39, and his criminal history was
category I (based on 0 criminal history points). See Id
. at ¶¶ 62-63. Petitioner’s acceptance
of responsibility warranted a three-level reduction pursuant
to §§ 3E1.1(a) and (b), for an adjusted total
offense level of 29. See Id . at ¶¶ 56-58.
The Guidelines range for a defendant with an offense level of
29 and a criminal history category I is 87 to 108 months of
imprisonment. See U.S.S.G. Ch. 5, Pt. A. Therefore,
the PSR recommended imposing a sentence of 87 months for both
counts, to be served concurrently, for a total term of 87
months. See PSR at 17-18.
Petitioner was sentenced, his previous attorney submitted a
sentencing memorandum, noting that the PSR advised the Court
to consider a two-level reduction in Petitioner’s
offense level, based on the anticipated reduction in the
relevant Guidelines range by the adoption of Amendment 782,
which would take effect on November 1, 2014. ECF No. 31 at 2.
Furthermore, the sentencing memorandum noted that counsel and
the Government had agreed that Petitioner was eligible for an
additional two-point Safety Valve reduction pursuant to
§ 2D1.1(b)(16). Id. After taking these
reductions into account, Petitioner’s adjusted offense
level would be 25, which would correspond to a sentencing
range of 57-71 months under Amendment 782’s reduction
of the base offense level. Id. at 3.
Government’s sentencing memorandum confirmed that it
would not oppose a two-level reduction pursuant to the
anticipated adoption of Amendment 782, its agreement to
recommend an additional two-level Safety Valve reduction, and
that the appropriate Guidelines range was now 57- 71 months.
ECF No. 34 at 2-3. The Government requested that the Court
impose a 57-month sentence, which would be a sentence at the
bottom of the amended Guidelines range. Id. at 3.
21, 2014, this Court sentenced Petitioner to a term of 57
months of imprisonment. See ECF Nos. 35 & 44.
MOTION FOR SENTENCE REDUCTION
federal court generally ‘may not modify a term of
imprisonment once it has been imposed.’”
Dillon v. United States, 560 U.S. 817, 819 (2010)
(quoting 18 U.S.C. § 3582(c)). However, a federal
sentencing court is authorized to modify an imposed sentence
when the relevant sentencing range was lowered subsequent to
a defendant’s original sentence. See 18 U.S.C.
§ 3582(c)(2) (“§ 3582”). Effective
November 1, 2014, the Commission promulgated Amendment 782,
which generally revised the Drug Quantity Table and chemical
quantity tables across drug and chemical types. Amendment 782
is retroactively applicable to previously sentenced
defendants. See United States v. Navarro, 800 F.3d
1104, 1107 (9th Cir. 2015).
whether a sentence reduction is appropriate under §
3582(c)(2) “requires a two-step inquiry.”
United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir.
2013). At step one, “a district court must determine
whether a prisoner is eligible for a sentence modification
under the Commission’s policy statement in U.S.S.G
§ 1B1.10.” Id. That policy statement
enumerates a list of amendments to the Guidelines which have
lowered the sentencing ranges for certain offenses.
See U.S.S.G. § 1B1.10(d). In the event that one
of the enumerated amendments has lowered a guideline range
applicable to a defendant, the district court “shall
determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) … had
been in effect at the time the defendant was
sentenced.” U.S.S.G. § 1B1.10(b)(1).
answer to step one is that a petitioner is eligible for a
reduced sentence, the district court turns to step two of the
inquiry, where the court “must consider any applicable
§ 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the
policies relevant at step one is warranted in whole or in
part under the particular circumstances of the case.”
Dunn, 728 F.3d at 1155 (internal citations omitted).
The § 3553(a) factors include: “the nature and
circumstances of the offense and the history and
characteristics of the defendant; the purposes of sentencing;
the kinds of sentences available; the sentences and ranges
established by the Guidelines; relevant policy statements
issued by the Sentencing Commission; the need to avoid
unwarranted sentencing disparities among similarly situated
defendants; and the need to provide restitution to
victims.” Id. at 1158 (internal citations