United States District Court, S.D. California
ORDER DENYING MOTION TO REDUCE SENTENCE
JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE
Robert Charles Burns (“Defendant”) moves to
reduce his sentence pursuant to 18 U.S.C. §3582(c)(2)
and Amendment 782 to the United States Sentencing Guidelines
(“USSG”) (the “Motion”). The
Government opposes the Motion. Pursuant to Local Rule
7.1(d)(1), the court finds the matters presented appropriate
for resolution without oral argument. For the reasons set
forth below, the motion for reduction of sentence is denied.
April 22, 1998, the United States filed a five-count
Superseding Indictment in the Southern District of California
charging Defendant and others with Conspiracy to Distribute
Cocaine, Distribution of Cocaine and Possession of Cocaine
with the Intent to Distribute. On May 27, 1998, the United
States filed an information, pursuant to 21 U.S.C. §
851, alleging that Defendant had sustained prior drug felony
convictions, which exposed Defendant to a potential maximum
sentence of life. Defendant's trial commenced on May 27,
1998, and on June 5, 1998, the jury found Defendant guilty on
all counts. On December 4, 1998, the Court sentenced
Defendant to 360 months custody, followed by 10 years of
supervised release on all five counts, to be served
arrive at this sentence, the Court calculated a base offense
level of 32, based upon 10 kilograms of cocaine, and then
increased the base offense level to 37 because Defendant was
a Career Offender and the statutory maximum for the offenses,
as a result of the 21 U.S.C. § 851 Information, was
life. With a Criminal History Category VI, the guideline
range was thus 360 months to life.
March 2, 2017, Defendant filed a petition to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). Federal
Defenders initially reviewed the Motion. On or about April
19, 2017, the court granted Defendant's Motion to appoint
retained counsel, John Lanahan, Esq.
general, a federal court cannot modify a term of imprisonment
once it has been imposed. 18 U.S.C. § 3582(c). However,
one exception to the general rule permits the district court
to modify an imposed sentence where the sentencing guideline
range has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. §3582(c)(2). Section 3582(c)(2)
requires a two-step inquiry. Dillon v. United
States, 560 U.S. 817, 826 (2010). First, the district
court must determine that a modification is consistent with
applicable policy statements issued by the Sentencing
Commission, namely U.S.S.G. § 1B1.10. Then, and only
then, does the district court go on to the second step of
considering the factors set forth in 18 U.S.C. § 3553(a)
and deciding in its discretion whether the authorized
reduction is warranted. Id. at 827.
782 to the United States Sentencing Guidelines revised the
guidelines applicable to drug-trafficking offenses by
reducing the Base Offense Level by two levels for most drug
offenses listed in the Drug Quantities Tables at U.S.S.G.
§§ 2D1.1 and 2D1.11. See U.S. Sentencing
Guidelines Manual app. C, amend. 782 (2014); see
also U.S.S.G. § 1B1.10(d), (e)(1) (making Amendment
782 apply retroactively to previously-sentenced defendants).
When determining whether a reduction is warranted, the
district court must determine what the defendant's
advisory guideline range would be under the amendment. In
doing so, the district court “shall substitute only the
amendments . . . for the corresponding guideline provisions
that were applied when the defendant was sentenced and shall
leave all other guideline application decisions
unaffected.” Id. § 1B1.10(b)(1).
Eligibility for a § 3582(c)(2) reduction is triggered
only if an amendment lowers the “applicable guideline
range (i.e., the guideline range that corresponds to the
offense level and criminal history category determined
pursuant to § 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines
Manual or any variance).” Id. cmt. n.1(A)
(second emphasis added).
court is not authorized to reduce a defendant's term of
imprisonment if an amendment does not have the effect of
lowering the defendant's applicable guideline range.
Id. § 1B1.10(a)(2)(B), cmt. n. 1(A). The court
also cannot reduce the defendant's sentence lower than
the low end of the amended guideline range. Id. cmt.
n.3. The only exception is if the defendant received a
downward departure based on substantial assistance to the
government, in which case the court may reduce the
defendant's sentence below the low end of the amended
guideline range by a comparable percentage. Id.
of Amendment 782
time of the original sentencing, the court applied a Base
Offense Level of 37 because Defendant was a Career Offender
and the statutory maximum for the offenses, as a result of
the 21 U.S.C. § 851 Information, was life. With a
Criminal History Category VI, the guideline range was thus
360 months to life. Defendant's Base Offense Level of 37,
pursuant to § 4B1.1, remains the same today as it was at
the time of sentencing. Amendment 782 does not apply to
reduce Defendant's sentence.
does not dispute that Amendment 782 affords no sentencing
relief. Rather, Defendant contends that “gross
sentencing disparity exists between himself and co-defendant
Louis Sauza-Martinez as a result of the reversal and remand
of Sauza-Martinez's conviction, where Sauza-Martinez was
sentenced to 151 months in prison, for relevant conduct under
USSG §1B1.3 that was the same as that of Mr. Burns, who
has a similar criminal history.” (Reply at p.7:11-15).
The difficulty with this argument is that the court's
authority to reduce Defendant's sentence under Amendment
782 is limited to those situations where the Base Offense
Level has been reduced ...