Opinion
No. CR 13-0068 WHA
05-16-2017
UNITED STATES OF AMERICA, Plaintiff, v. LEONICIO GONZALEZ-BARRAGAN, Defendant.
ORDER DENYING MOTION TO REDUCE SENTENCE UNDER AMENDMENT 794 AND SEEKING A RESPONSE FROM THE GOVERNMENT AND PROBATION
RE AMENDMENT 782
In July 2013, the undersigned judge sentenced defendant Leonicio Gonzalez-Barragan. On November 1, 2015, the United States Sentencing Commission passed Amendment 794 to the sentencing guidelines, which identified several factors to be considered in applying a "minor role" adjustment to defendants' offense level in drug cases, which had been applied inconsistently before the amendment.
Amendment 794 "resolved a circuit split, and was intended as a clarifying amendment." United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Quintero-Leyva held that Amendment 794 applied retroactively in direct appeals, but it did not address whether it could apply to motions for reduced sentences. The only appropriate motion for a sentencing reduction in this context would be under Section 3582. See Hamilton v. United States, 67 F.3d 761, 763 (9th Cir. 1995). A clarifying amendment is not retroactive for a motion under Section 3582. United States v. Stokes, 300 Fed. Appx. 507, 508 (9th Cir. 2008); see also United States. v. Nunez, No. 13-cr-00383, 2017 WL 119169, at *6 (N.D. Cal. Jan. 12, 2017) (Chief Judge Phyllis Hamilton) (addressing the same issue regarding Amendment 794). Notably, Amendment 794 has not been given retroactive effect for the purposes of a motion for a sentence reduction under Section 3582 inasmuch as it is not listed among the covered amendments in U.S.S.G. 1B1.10(d) that warrant a reduction pursuant to that section.
Gonzalez-Barragan now moves, pro se, under Section 3582(c) for a reduction of his sentence pursuant to Amendment 794. Because, as stated, Amendment 794 does not have retroactive effect for such motions, defendant's motion on that theory is DENIED.
Although Gonzalez-Barragan's petition primarily addresses Amendment 794, the final section also seeks relief under Amendment 782. The United States and the Probation Office will please respond to that particular request by JUNE 15, AT NOON.
IT IS SO ORDERED. Dated: May 16, 2017.
/s/_________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE