United States District Court, S.D. California
ORDER DENYING MOTION FOR MODIFICATION OF TERM OF
IMPRISONMENT PURSUANT TO 18 U.S.C. § 3582(C)(2)
M. James Lorenz United States District Judge
November 6, 2014, Petitioner Heriberto Arciga
(“Petitioner”), proceeding pro se, filed
a motion for relief of sentence pursuant to 18 U.S.C. §
3582(c)(2). Petitioner's motion is based upon retroactive
Amendment 782 of the United States Sentencing Guidelines that
pertain to drug trafficking offenses which became effective
November 1, 2014. The Government filed an opposition to the
motion. For the reasons set forth below, Petitioner's
motion is DENIED.
pled guilty to Importation of Methamphetamine in violation of
21 U.S.C. §§ 952 and 960. On June 3, 2014, this
Court sentenced Petitioner to 48 months in the custody of the
Bureau of Prisons for one count of Importation of
Methamphetamine, finding that the base offense level was 38,
which was reduced to 34 with a 4 point minor role reduction.
A 3 point reduction was applied for acceptance of
responsibility, along with a 2 point reduction for role, for
an adjusted base offense level of 29. Petitioner was in a
criminal history category II. After a 4 point reduction for
Fast Track, and a 3-level variance under § 3553(a) the
final calculation was 22, with a sentencing range of 46 to 57
months. After considering the factors in 18 U.S.C. §
3553(a), the Court sentenced Petitioner to 48 months.
now moves for a reduction of his sentence, pursuant to 18
U.S.C. § 3582(c)(2), based on Amendment 782 to the
Sentencing Guidelines. Amendment 782 generally reduces the
base offense level for drug trafficking offenses in §
2D1.1(c) of the Sentencing Guidelines by two levels.
See Amendment 782, Supplement to Appendix C,
Amendments to the Guidelines Manual. Petitioner falls within
the purview of this change.
motion for reduction of sentence under § 3582(c)(2)
“is simply a vehicle through which appropriately
sentenced prisoners can urge the court to exercise leniency
to give [them] the benefits of an amendment to the
guidelines.” United States v. Townsend, 98
F.3d 510, 513 (9th Cir. 1996) (quoting United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (internal
quotation marks omitted)). Whether to reduce a sentence under
§ 3582(c)(2) is a discretionary decision. See
18 U.S.C. § 3582(c)(2) (“[T]he court may
reduce the term of imprisonment.”) (emphasis added);
Townsend, 98 F.3d at 512 (“[T]he decision
whether to reduce a sentence under § 3582 is within the
discretion of the district court judge.”); United
States v. Cueto, 9 F.3d 1438, 1440 (9th Cir. 1993)
(“Courts have discretion to reduce a previously imposed
term of imprisonment when the Sentencing Commission reduces
the sentencing range, and the reduction is ‘consistent
with applicable policy statements issued by the Sentencing
Commission.' ”) (quoting 18 U.S.C. §
determining whether a sentence should be modified following
amendment of the Guidelines, the Court should consider the
term of imprisonment that it would have imposed had the
amendment to the Guidelines been in effect at the time the
particular defendant was sentenced. U.S.S.G. §
1B1.10(b). In addition, the Court must consider the 18 U.S.C.
§ 3553(a) factors and the danger to the public created by
any reduction in a defendant's sentence. Id. at
cmt. n. 1(B). The Court may also consider the defendant's
post-sentencing conduct. Id.
the amended Guidelines, Petitioner's new base offense
level would now be a 36, rather than a 38, and his adjusted
offense level would be 27. Petitioner remains in a criminal
history category II. Neither the Fast Track departure nor the
variances are calculated in the amended guidelines.
Therefore, the resulting applicable guideline range is 78 to
considering the §3553(a) factors anew, the danger to the
public created by any reduction in Petitioner's sentence,
the Court finds no further reduction in Petitioner's
sentence is warranted. Petitioner's original 48 month
sentence is still less than the low-end of the new Guideline
range. The Court considers the originally imposed sentence as
the minimum necessary to address Petitioner's conduct,
and thereby declines to reduce his sentence further.
on all of the above considerations, Petitioner's motion
for a reduction in his sentence is DENIED.