United States v. Garrido-Hernandez

          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

         Before 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, ^[1] 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.

         I. BACKGROUND

         On 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 ¶ 1.

         According 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.

         Before 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.

         The 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.

         On July 21, 2014, this Court sentenced Petitioner to a term of 57 months of imprisonment. See ECF Nos. 35 & 44.

         II. MOTION FOR SENTENCE REDUCTION

         a. Legal Standard

         “A 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).

         Determining 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).

         If the 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 omitted).

         b. ...