Opinion
CASE NO. 1:11-CR-000112-5-LJO
12-31-2015
UNITED STATES OF AMERICA, Plaintiff, v. GERARDO ROSAS GOMEZ, Defendant.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO REDUCE SENTENCE UNDER U.S.S.G. AMENDMENT 782 (Doc. 174)
Before the Court is Defendant Gerardo Rosas Gomez's motion to reduce his sentence (Doc. 174), under U.S.S.G. § 1B1.10(b)(1) and Amendment 782 to the United States Sentencing Guidelines, which revised the Drug Quantity Table in § 2D1.1 and reduced by two levels the offense level applicable to many drug trafficking offenses. The Government has opposed the motion on the basis that the defendant is not eligible for a reduction under § 1B1.10. See Doc. 68. Upon a thorough review of the parties' briefing, the record in the case, including the Probation Office's Presentence Report ("PSR"), and the relevant law, the Court will deny the motion.
Hereinafter, all references to sections (§) refer to the United States Sentencing Guidelines unless otherwise indicated. --------
A federal sentencing court is authorized to modify an imposed sentence when the relevant sentencing range was lowered subsequent to a defendant's original sentence. 18 U.S.C. § 3582(c)(2); see United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013) (a district court may do so "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."). Effective November 1, 2014, the Commission promulgated Amendment 782, which generally revised the Drug Quantity Table and chemical quantity tables across drug and chemical types. The Commission also voted to make Amendment 782 retroactively applicable to previously sentenced defendants.
However, a district court's authority to modify a sentenced is constrained by the Sentencing Commission. Dillon v. United States, 560 U.S. 817, 826-27 (2010). Pursuant to § 1131.10(a)(2)(13), "[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." § 1B1.10 (a)(2)(B).
ORIGINAL SENTENCE IMPOSED
On March 17, 2011, Defendant was charged by indictment with: (count one) conspiring with other individuals to manufacture and distribute methamphetamine; and (counts two - five) possession with intent to distribute. See Doc. 27. On February 9, 2012, Defendant pleaded guilty to counts one, two, four, and five. See Doc. 93.
The final Presentence Report ("PSR") recommended a base offense level of 38 for the amount of methamphetamine involved in the case (5.2 kilograms of actual methamphetamine), pursuant to USSG § 2D1.1. The PSR recommended a four-level increase for Defendant's role in the offense, a two-level increase for the possession of firearms, and a reduction in the offense level by three for Defendant's acceptance of responsibility, to an adjusted offense level of 41. The guidelines range for a defendant with an offense level of 41 and a criminal history category IV (based on nine criminal history points) was 360 months to life, which was the PSR recommendation. U.S.S.G. Ch. 5, Pt. A.
The Court disallowed the four-level leadership enhancement. The Court calculated the guideline range as a base offense level of 37, for a guideline range of 292-365 months. Because Defendant was a juvenile at the time of one of his prior convictions, but was convicted as an adult, the Court departed downward from the recommended criminal history category IV to category III. The result was a guideline range of 262-327 months. The government also requested a downward departure for Defendant's substantial assistance. See Docs. 172, 144, 145. For these reasons, on December 9, 2013, this Court imposed a sentence of 183 months.
APPLICATION OF AMENDMENT
Defendant is not eligible for a sentence reduction because the drug quantity table has not reduced Defendant's base offense level. Where the drug quantity involved in a case is 4.5 kilograms or more of actual methamphetamine, the Amendment does not operate. Here, the drug quantity involved in the case is 5.2 kilograms of actual methamphetamine. Therefore, Defendant's base offense level remains the same under Amendment 782. In other words, the Amendment has not reduced the guideline range applicable in Defendant's case.
Because the application of the Amendment does not have the effect of lowering Defendant's applicable guideline range, § 1B1.10 (a)(2)(B) precludes a sentence reduction. See, e.g., United States v. Leniear, 574 F.3d 668, 673-74 (9th Cir. 2009) (the final sentencing range was unchanged due to the operation of the grouping rules).
The Court commends Defendant on his many accomplishments while in prison such as his progress on his skills development plan, including his work towards his GED. The Court's denial of his request is in no way a reflection of Defendant's character, but rather a matter of law.
CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Gerardo Rosas Gomez's motion to reduce his sentence is DENIED, pursuant to 18 U.S.C. § 3582(c)(2). IT IS SO ORDERED.
Dated: December 31 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE