United States District Court, N.D. California, San Jose Division
ORDER ADDRESSING DEFENDANT'S LETTER RE REDUCTION
IN SENTENCE [RE: ECF 36]
LABSON FREEMAN United States District Judge.
Nina Souza, a federal prisoner serving an 84-month term of
imprisonment, has filed a letter inquiring whether she
received “the 2 point reduction that The Honorable
Judge Jensen granted during [ ] sentencing.” Letter,
ECF 36. Souza states that it was her understanding that she
was to receive the reduction, but that it is not reflected in
her records. Id.
Federal Public Defender's Office has construed
Souza's inquiry as a motion for reduction in sentence
pursuant to 18 U.S.C. § 3582(c)(2) and has filed a
Notice of NonIntervention, 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 her request.” Notice of
Non-Intervention, ECF 40.
not clear whether Souza actually intends to bring a motion or
whether she merely seeks clarification regarding the status
of the reduction in sentence that she expected to receive. To
the extent she does move for a reduction in sentence, such
motion is DENIED for the reasons discussed below.
October 16, 2013, a grand jury issued an indictment charging
Souza with Conspiracy to Possess with Intent to Distribute,
and to Distribute, Methamphetamine in violation of 21 U.S.C.
§ 846 (Count 1); and Possession with Intent to
Distribute Methamphetamine in violation of 21 U.S.C. §
841(a)(1) (Count 2). Indictment, ECF 1. Souza thereafter
entered into a written Plea Agreement with the Government
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
Plea Agreement, ECF 23. The Plea Agreement provided that
Souza would plead guilty to Count 1 only and would be
sentenced to 84 months imprisonment, 5 years supervised
release, a fine in an amount to be determined by the Court,
and a special assessment in the amount of $100. Id.
¶¶ 1, 8. The Plea Agreement recognized that the
United States Sentencing Commission was contemplating an
amendment to United States Sentencing Guideline § 2D1.1,
governing drug trafficking offenses, which would lower base
offense levels in the drug quantity table by 2 levels.
Id. ¶ 7. The Plea Agreement expressly treated
that amendment as if it already were applicable to
Souza's case, applying the contemplated 2-level reduction
in calculating Souza's total offense level as 27.
Id. Judge D. Lowell Jensen, the district judge then
assigned to the case, accepted Souza's plea on August 7,
2014 and set sentencing for October 30, 2014. Minutes, ECF
21; Order Accepting Plea, ECF 22.
to sentencing, the United States Probation Office prepared a
presentence report (“PSR”) calculating the
applicable guideline range as 151 months - 188 months and
recommending a 130 month term of imprisonment. PSR, ECF 26.
Souza filed a sentencing memorandum stating that she had no
objection to the PSR but requesting that Judge Jensen
sentence her to 84 months imprisonment pursuant to the terms
of the Plea Agreement. Def.'s Sentencing Memo, ECF 28.
Judge Jensen did so, sentencing Souza on October 30, 2014 to
the custody of the BOP for a term of 84 months on Count 1 and
granting the Government's motion to dismiss Count 2.
Minutes, ECF 31; Judgment, ECF 32. The contemplated
Guidelines amendment, which was applied prospectively under
the Plea Agreement, became effective in November 2014.
See United States v. Rodriguez-Soriano, 855 F.3d
1040, 1041 (9th Cir. 2017) (“In November 2014,
Amendment 782 to the Guidelines became effective, lowering by
two levels the base offense level calculated under §
2D1.1(c) for certain drug types and quantities.”).
Judge Jensen has retired, this case has been reassigned to
the undersigned judge. Souza's letter regarding reduction
in sentence is addressed as follows.
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 sentence imposed following a
Rule 11(c)(1)(C) plea agreement may be “based on”
a guideline range if the district court in fact relies on the
guideline range in imposing sentence. Id. at
1042-43. However, if the district court imposes “a
particular sentence for reasons unrelated to the guideline
range, ” the sentence is not “based on” the
guideline range and the defendant is not eligible for a
reduction. Id. at 1043-44.
present case, the sentence imposed by Judge Jensen was not
“based on” the guideline range. As discussed
above, Probation calculated the applicable guideline range to
be 151 months - 188 months, and Souza did not dispute that
calculation. Judge Jensen did not impose a sentence within
that range, but instead imposed the 84-month term of
imprisonment agreed to by the parties in the Plea Agreement.
The 84-month term was calculated in part by applying the
2-level reduction in offense level which later was adopted as
the Court clarifies that Souza already received the 2-level
reduction in offense level that she references in her letter,
and that she is not eligible for a reduction in sentence
under 18 U.S.C. § 3582(c)(2).