United States District Court, N.D. California, San Jose Division
ORDER CONSTRUING DEFENDANT'S MOTION UNDER 28
U.S.C. § 2255 AS A MOTION FOR REDUCTION OF SENTENCE
UNDER 18 U.S.C. § 3582(C)(2); AND DENYING MOTION [RE:
LABSON FREEMAN United States District Judge.
Jesus Quinones, a federal prisoner serving a 60-month term of
imprisonment, has filed a pro se motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255,
seeking relief under Amendment 782 to the United States
Sentencing Guidelines. Def.'s Motion, ECF 31. Amendment
782, which became effective after Quinones was sentenced,
lowered by two levels the base offense level for certain drug
crimes. See United States v. Rodriguez-Soriano, 855
F.3d 1040, 1041 (9th Cir. 2017). A motion under § 2255
is not the appropriate vehicle for seeking relief under
Amendment 782 and, in fact, this Court lacks jurisdiction
under § 2255 to grant Quinones the relief he requests.
See Hamilton v. United States, 67 F.3d 761, 764 (9th
Cir. 1995). Quinones' motion properly should have been
brought under 18 U.S.C. § 3582. See Id. The
Ninth Circuit has indicated that under circumstances such as
these, the proper course is to “construe [the
defendant's] pro se section 2255 motion as a request for
resentencing under 18 U.S.C. § 3582.” Id.
“To do so is consistent with the duty of federal courts
to construe pro se pleadings liberally.” Id.;
see also United States v. Mercado, No.
2:07-CR-2018-SMJ-01, 2017 WL 830967, at *1 (E.D. Wash. Mar.
2, 2017) (construing a § 2255 motion seeking relief
under Guidelines amendment as a motion for resentencing under
§ 3582). This Court therefore construes Quinones'
§ 2255 motion as a motion for reduction of sentence
under § 3582. The motion is DENIED for the reasons
31, 2013, a grand jury issued a single-count indictment
charging Quinones with Possession with Intent to Distribute
and Distribution of Methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). Indictment, ECF 1. Quinones thereafter
entered into a written plea agreement with the Government
pursuant to Rules 11(c)(1)(A) and 11(c)(1)(B) of the Federal
Rules of Criminal Procedure. Plea Agreement, ECF 22. The Plea
Agreement provided that Quinones would plead guilty to the
Indictment, recommended an adjusted offense level of 23, and
stated that the parties had not reached agreement regarding
Quinones' criminal history category. Id.
¶¶ 1, 7. The Plea Agreement expressly waived
Quinones' rights to appeal or collaterally attack his
conviction or sentence by means of motions brought under 28
U.S.C. § 2255 or 18 U.S.C. § 3582. Id.
¶ 5. The only exception to the waiver was a reservation
of Quinones' right to claim that his counsel was
ineffective in connection with negotiating the Plea Agreement
or entry of Quinones' guilty plea. Id. Judge D.
Lowell Jensen, the district judge then assigned to the case,
accepted Quinones' plea on May 29, 2014. Order Accepting
Plea, ECF 21.
to sentencing, the United States Probation Office prepared a
presentence report (“PSR”) which calculated
Quinones' total offense level as 23, which was consistent
with the Plea Agreement, and his criminal history category as
I. PSR ¶¶ 23, 40. The PSR stated that based upon a
total offense level of 23 and a criminal history category of
I, the guideline imprisonment range would be 46 months - 57
months. Id. ¶ 84. However, because the
statutory mandatory minimum term of imprisonment was five
years, a term greater than the high end of the applicable
guideline range, the guideline term of imprisonment was 60
October 9, 2014, Judge Jensen sentenced Quinones to 60 months
imprisonment, four years supervised release, and a special
assessment in the amount of $100. Minutes, ECF 27; Judgment,
ECF 28. Quinones, proceeding pro se, has filed a § 2255
motion asking “that the court grant petitioner relief
to which he may be entitle [sic] in this proceeding” in
light of Amendment 782. Def.'s Motion, ECF 31. Because
Judge Jensen has retired, this case has been reassigned to
the undersigned judge.
discussed above, the Court construes Quinones' §
2255 motion as a motion for reduction of sentence under 18
U.S.C. § 3582. The Court concludes that Quinones is not
entitled to relief under § 3582.
Quinones has Waived the Right to Seek Relief under 18 U.S.C.
Plea Agreement, Quinones expressly waived the right to seek
relief under either § 2255 or § 3582. Plea
Agreement ¶ 5, ECF 22. “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 a reduction of
sentence under 18 U.S.C. § 3582(c)(2) 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
Malone, the record before this Court does not
suggest any ground for excusing Quinones' waiver.
Accordingly, Quinones' motion is DENIED.
Quinones is not Entitled to a Reduction of Sentence under
3582(c)(2) authorizes a district court to reduce a
defendant's sentence “on its own motion.” 18
U.S.C. § 3582(c)(2). Even if this Court were to exercise
its power to consider application of Amendment 782 on its own
motion in this case, Quinones 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 determines a defendant's eligibility for a
reduction.” Id. “If a defendant is
eligible, the court must then consider the factors in 18
U.S.C. § 3553(a) and assess whether the requested
reduction is warranted.” Id.
order to establish eligibility, “a defendant must show
(1) that his sentence was ‘based on' a guideline
range that has since been lowered, and (2) that the reduction
he seeks is ‘consistent with applicable policy
statements issued by the Sentencing Commission.'”
Rodriguez-Soriano, 855 F.3d at 1042 (quoting 18
U.S.C. § 3582(c)(2)). “[A] reduction in the
defendant's term of imprisonment is not authorized under
18 U.S.C. 3582(c)(2) and is not consistent with [the
applicable] policy statement if . . . the amendment does not
have the effect of lowering the defendant's applicable
guideline range because of the operation of another guideline
or statutory provision (e.g., a statutory mandatory minimum
term of imprisonment).” U.S.S.G. § 1B1.10, comment
n.1. Put another way, “[t]he mandatory minimum applies
in section 3582(c)(2) proceedings.” United States
v. Waipa, 667 Fed. App'x 217 (9th Cir. 2016). Thus
when considering a motion under § 3582(c)(2), a district
court has no authority to reduce a defendant's sentence
below the statutory mandatory minimum. Id.
(“Waipa's 120-month sentence reflects the mandatory
minimum for his offense. . . . Thus, the district ...