United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO MODIFY
IMPOSITION OF SENTENCE UNDER 18 U.S.C. § 3582(C)(2) [RE:
LABSON FREEMAN United States District Judge.
Alex Chavez, a federal prisoner serving a 120-month term of
imprisonment, has filed a pro se motion for a reduction of
sentence under 18 U.S.C. § 3582(c)(2). Def.'s
Motion, ECF 342. The motion is DENIED for the reasons
April 27, 2011, a grand jury issued a second superseding
indictment charging multiple defendants with drug and firearm
offenses. Chavez was charged with Conspiracy to Possess with
Intent to Distribute, to Distribute, and to Manufacture
Methamphetamine in violation of 21 U.S.C. § 846 (Count
1); Possession with Intent to Distribute Methamphetamine in
violation of 21 U.S.C. § 841(a)(1) (Count 5); and
Possession or Receipt of Firearm in Commerce with Removed or
Altered Serial Number in violation of 18 U.S.C. § 922(k)
(Count 6). Second Superseding Indictment, ECF 63.
thereafter entered into a written Plea Agreement with the
Government pursuant to Rules 11(c)(1)(A) and 11(c)(1)(C) of
the Federal Rules of Criminal Procedure. Plea Agreement, ECF
287. The Plea Agreement provided that Chavez would plead
guilty to Count 5 only and that the sentence on Count 5 would
be 120 months imprisonment, 5 years supervised release, and a
special assessment in the amount of $100. Id.
¶¶ 1, 8. The Plea Agreement also contained an
express waiver of Chavez's right to seek relief under 18
U.S.C. § 3582. Id. ¶ 5. Judge D. Lowell
Jensen, the district judge then assigned to the case,
accepted Chavez's plea on May 16, 2013. Order Accepting
Plea, ECF 288.
to sentencing, the Government submitted a sentencing
memorandum in support of the parties' joint recommended
sentence as set forth in the Plea Agreement, noting that the
Probation Officer also concurred with the recommendation.
Gov't Sentencing Memo. at 1, ECF 305. The Government
stated that the recommended 120-month term of imprisonment
was below the low end of the Guidelines range, 151 months,
but it argued that a 120-month term of imprisonment was
sufficient in light of Chavez's intact and supportive
family, demonstrated capacity to reform, and agreement to
waive appeal, “thereby ensuring that this litigation
will end with his sentencing.” Id. at
2. Chavez did not file a sentencing memorandum.
31, 2014, Judge Jensen imposed the sentence which was set
forth in the Plea Agreement and requested in the
Government's sentencing memorandum: 120 months
imprisonment, 5 years supervised release, and a special
assessment in the amount of $100. Minutes, ECF 330; Judgment,
ECF 331. Judge Jensen also dismissed Counts 1 and 6 of the
second superseding indictment on the motion of the
proceeding pro se, has filed a motion for a reduction of
sentence under 18 U.S.C. § 3582(c)(2). The Federal
Public Defender's Office has filed a Notice of
Non-Intervention, indicating that “the Office of the
Federal Public Defender in the Northern District of
California has reviewed Defendant's motion and has
nothing further to add to his request.” Notice of
Non-Intervention, ECF 343. Because Judge Jensen has retired,
this case has been reassigned to the undersigned judge.
Chavez has Waived the Right to Seek Relief under 18 U.S.C.
Plea Agreement, Chavez expressly waived the right to seek
relief under 18 U.S.C. § 3582. Plea Agreement ¶ 5,
ECF 287 (“I also agree not to seek relief under 18
U.S.C. § 3582.”). “Such a waiver is
enforceable if (1) the language of the waiver encompasses the
relief sought, and (2) the waiver is knowingly and
voluntarily made.” United States v. Malone,
503 Fed. App'x 499, 500 (9th Cir. 2012) (internal
quotation marks and citation omitted). In Malone,
the Ninth Circuit reversed the district court's order
granting the defendant's motion for reduction of sentence
because the defendant had “waived his right to move for
a sentence reduction under § 3582(c)(2) in his
underlying plea agreement.” Id. at 499. The
record did not suggest the existence of “any recognized
ground for excusing waiver, such as claims involving breach
of the plea agreement, racial disparity in sentencing among
codefendants or an illegal sentence imposed in excess of a
maximum statutory penalty.” Id. at 500
(internal quotation marks and citation omitted). To the
extent that new grounds for sentence reduction may have
developed after execution of the plea agreement, the Ninth
Circuit held that “a favorable change in the law does
not entitle a defendant to renege on a knowing and voluntary
guilty plea.” Id. (internal quotation marks
and citation omitted).
Malone, the record before this Court does not
suggest any ground for excusing Chavez's waiver of the
right to seek relief under 18 U.S.C. § 3582.
Accordingly, Chavez's motion is DENIED.
Chavez is not Entitled to a Reduction of Sentence under
3582(c)(2) authorizes a Court to reduce a defendant's
sentence “on its own motion.” 18 U.S.C. §
3582(c)(2); Malone, 503 Fed. App'x at 500. Even
if this Court were to exercise its power to consider
application of Amendment 782 on its own motion in this case,
Chavez would not be entitled to a reduction of his sentence.
“Under federal sentencing law, a district court
generally ‘may not modify a term of imprisonment once
it has been imposed.'” Rodriguez-Soriano,
855 F.3d at 1042 (quoting 18 U.S.C. § 3582(c)).
“This baseline rule is subject to an important
exception: a district court may reduce a sentence based on a
guideline range that is later lowered by the Sentencing
Commission.” Id. (citing 18 U.S.C. §
3582(c)(2)). Deciding whether to reduce a defendant's
sentence under § 3582(c)(2) is a two-step process.
Id. “[A] district court first ...