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United States v. Mokay

United States District Court, S.D. California

November 9, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
GUILLERMO MOKAY, Respondent.

          ORDER DENYING MOTION FOR MODIFICATION OF TERM OF IMPRISONMENT PURSUANT TO 18 U.S.C. § 3582(C)(2)

          Hon. M. James Lorenz United States District Judge

         On March 26, 2015, Petitioner Guillermo Mokay (“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.

         BACKGROUND

         Petitioner pled guilty to Importation of Cocaine in violation of 21 U.S.C. §§ 952 and 960. On June 9, 2014, this Court sentenced Petitioner to 46 months, finding that the base offense level was 32, which was reduced to 30 with a minor role reduction. Petitioner was in a criminal history category IV. 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 25. After a 4 point reduction for Fast Track, and a 2-level reduction for the expected November 1, 2014, change in the Guidelines, the resulting level was 19, with a range of 46-57 months. After considering the factors in 18 U.S.C. § 3553(a), the Court sentenced Petitioner to 46 months.

         DISCUSSION

         Petitioner 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 reduces the base offense level for drug trafficking offenses in § 2D1.1(c) of the Sentencing Guidelines by generally reducing the offense level in the § 2D1.1 Drug Quantity Table by two levels. See Amendment 782, Supplement to Appendix C, Amendments to the Guidelines Manual. Petitioner falls within the purview of this change.

         A 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. § 3582(c)(2)).

         In 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[1] 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.

         Applying the amended Guidelines, Petitioner's new base offense level would now be a 30, rather than a 32. Petitioner remains in a criminal history category IV. Neither the Fast Track departure nor the role variances are calculated in the amended guidelines. Petitioner has already received the benefit of Amendment 782's 2-point reduction because the Court anticipated the enactment of Amendment 782 and included it in Petitioner's calculation. Therefore, the amended adjusted offense level would be 25 with a range of 84 to 105 months.

         When the Court previously considered the §3553(a) factors at Petitioner's sentencing, the Court believed that a below-Guideline sentence was appropriate. After 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 46 month sentence is still less than the low-end of the new Guideline range.

         CONCLUSION

         Because Petitioner's original sentence is lower than his amended guidelines, he is not eligible for a further reduction. Moreover, Petitioner was released from custody on June 30, 2017, making his motion moot. Based on all of the above considerations, Petitioner's motion for a reduction in his sentence is DENIED.

         IT IS ...


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