Opinion
EP-07-CR-00411-FM-4
11-09-2022
UNITED STATES OF AMERICA v. ALFREDO GUTIERREZ
ORDER DENYING MOTION FOR SENTENCE REDUCTION
FRANK MONTALVO, UNITED STATES DISTRICT JUDGE.
Before the court are “Federal Rule Criminal Procedure 35(b) Motion for Sentence Commutation or Sentence Reduction” [ECF No. 260], filed April 12, 2022, by Alfredo Gutierrez (“Defendant”) and “Motion for Discovery” [ECF No. 262], filed May 26, 2022, by Defendant. Defendant requests a sentence reduction and seeks discovery to aid him in supporting that request.Upon due consideration of the motions and applicable law, the motions are DENIED.
“Federal Rule Criminal Procedure 35(b) Motion for Sentence Commutation or Sentence Reduction” (“Mot.”), ECF No. 260, filed Apr. 12, 2022; “Motion for Discovery,” ECF No. 262, filed May 26, 2022.
I. BACKGROUND
In 2007, the court sentenced Defendant to 262 months of imprisonment for conspiring to possess with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841 and 846, and possessing with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 841. The court's sentence, imposed pursuant to the career offender provision of U.S.S.G. § 4B1.1, was based in part on a prior New Mexico conviction in 2001 for distribution of marijuana by possession with intent to distribute. The Fifth Circuit affirmed the court's sentence, stating “the district court did not commit error, plain or otherwise, in sentencing Defendant as a career offender.”
“Judgment in a Criminal Case” 1-2, ECF No. 124, entered Nov. 7, 2007.
See generally “Sentencing,” ECF No. 133, entered Feb. 1, 2008; “Presentence Investigation Report” (“PSR”) ¶¶ 40, 46, ECF No. 240, filed Oct. 24, 2007.
United States v. Gutierrez, 304 Fed.Appx. 331, 334 (5th Cir. 2008).
In July 2018, Defendant filed a motion for a two-point sentence reduction pursuant to Amendment 782 to 18 U.S.C. § 3582(c)(2). Among other things, Defendant continued to argue his prior felonies did not qualify as predicates for career criminal sentence enhancement. The court disagreed, denying his motion and finding that “[c]areer offenders are ineligible to receive the two-point reduction Defendant requests as Amendment 782 did not lower the sentencing range established for a career offender.”
“Petition for Sentencing Reduction Pursuant to 782 Amendment, Under 18 U.S.C. Section 3582(c)(2),” ECF No. 235, filed July 18, 2018.
Id. at 4.
“Order Denying Motion for Reduction of Sentence [ECF No. 235]” 1, ECF No. 245, entered Sept. 30, 2019.
In August 2019, Defendant filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A) based on “extraordinary and compelling” reasons. Specifically, Defendant pointed to the discrepancy between his original sentence-which included a career criminal enhancement-and what his sentence would have been had he committed his crimes after the First Step Act was passed, which changed the drug felonies that can be used as predicates for sentence enhancements. The court denied that motion, reminding Defendant the Fifth Circuit affirmed the court's prior finding regarding his career criminal enhancement.
“Motion for Reduction of Sentence Pursuant to Title 18 U.S.C. § 3582(c)(1)(A)” 9, ECF No. 244, filed Aug. 26, 2019.
Id. at 8-9.
“Order Denying Motion for Reduction of Sentence [ECF No. 244]” 2, ECF No. 246, entered Sept. 30, 2019.
II. DISCUSSION
Defendant is scheduled to be released in October 2025. He again seeks a sentence reduction. He argues 1) extraordinary and compelling reasons, including the disparity between his current sentence and what he would have received today, warrant such a reduction; 2) his two prior convictions were inappropriately used as sentence enhancement; and 3) marijuana was not a controlled substance at the time of his conviction. These arguments have already been addressed by this court and the Fifth Circuit. Therefore, the court does not address them again here.
See Federal Bureau of Prisons, “Find an Inmate,” https://www.bop.gov/inmateloc/ (last visited Oct. 12, 2022).
Mot. at 3.
See “Order Denying Motion for Reduction of Sentence [ECF No. 244]”; “Order Denying Motion for Reduction of Sentence [ECF No. 235]”; United States v. Gutierrez, 304 Fed.App'x.331 (5th Cir. 2008).
Defendant also argues his sentence should be reduced on “extraordinary and compelling” grounds given changing views around marijuana, noting New Mexico recently decriminalized marijuana in the Cannabis Regulation Act (“CRA”) and provided for expungement of certain marijuana arrests and convictions in the Criminal Record Expungement Act (“CREA”). This argument fails for at least three reasons. First, since Defendant was convicted of a federal offense, neither the CRA nor the CREA apply here. Second, sentence reductions under 18 U.S.C. § 3582(c)(1)(A)(i) must be based on “extraordinary and compelling” circumstances unique to the inmate. The effects of legal and societal changes are not unique to Defendant. Finally, changing societal views around marijuana, without legislative codification, cannot form the basis for a court reducing prison sentences.
Mot. at 3, 9-10.
See, e.g., United States v. Castillo, No. 4:16-CR-142, 2022 WL 2718724, at *7 (E.D. Tex. July 13, 2022); United States v. Garcia, No. #:15-CR-0194-B-1, 2021 WL 3269774, at *3 (N.D. Tex. July 30, 2021); United States v. Green, No. 3:19-CR-12-S-2, 2022 WL 1000516, at *1 (N.D. Tex. Apr. 4, 2022); United States v. Iruegas, No. CR 2:18-366, 2021 WL 1169348, at *2 (S.D. Tex. Mar. 25, 2021); United States v. Vargas, No. 3:17-CR-0342-B-2, 2021 WL 347586, at *3 (N.D. Tex. Feb. 2, 2021).
III. CONCLUSION
Accordingly, the court enters the following orders:
1. It is HEREBY ORDERED that “Federal Rule Criminal Procedure 35(b) Motion for Sentence Commutation or Sentence Reduction” [ECF No. 260] is DENIED.
2. It is FURTHER ORDERED that “Motion for Discovery” [ECF No. 262] is DENIED.
3. The Clerk of Court is INSTRUCTED to mail a true and correct copy of this order to Alfredo Gutierrez, #25407-180, FCI LA TUNA, FEDERAL CORRECTIONAL INSTITUTION, SATELLITE CAMP, P.O. BOX 8000, ANTHONY, NM, 88021.
SIGNED AND ENTERED.