Opinion
CR 16-1112-TUC-CKJ
08-05-2024
United States of America, Plaintiff, v. Pedro Ojeda-Ramirez, Defendant.
ORDER
Cindy K. Jorgenson United States District Judge
Pending before the Court is the pro se Motion for Reduction of Sentence based on the U.S.S.G. Amendment to Section 4C1.1[,] the "Zero-Point" Criminal History Defendant Under 18 U.S.C. § 3582(c)(2) ("Motion") (Doc. 177) filed by Pedro Ojeda-Ramirez ("Ojeda-Ramirez"). The Federal Public Defender filed a Notice RE: Pro Se Filing, stating it will not be filing a supplemental memorandum (Doc. 178). The United States Probation Office has filed a Memorandum RE: Retroactive Criminal History Amendment of Chapter Four ZeroPoint Offenders - Ineligible (Doc. 179).
Procedural Background
On September 19, 2016, Ojeda-Ramirez entered a plea of guilty to Counts One and Two of an Information, charging Ojeda-Ramirez with Conspiracy to Possess with Intent to Distribute Marijuana, in violation of 21 U.S.C. §§ 846, 84l(a)(1), 841(b)(1)(B)(vii), and Possession of a Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(i), and 2, both felony offenses. Ojeda-Ramirez agreed to submit to forfeiture and to not submit a claim to the firearms and ammunition that were used in the offense.
The plea agreement provided:
Factual Basis:
I agree . . . that if this matter were to proceed to trial, the government could prove the elements of the offenses beyond a reasonable doubt based on the following facts:
Beginning at a time unknown and continuing to on or about May 2, 2016, at or near Cyprus Mine, on the Tohono O'odham Nation, in the District of Arizona, I, Pedro Ojeda-Ramirez, worked as a scout out in the desert. I was a scout with Ulises Alaim Saijas-Zamorano and Vidal QuinonesGonzalez. As scouts, we assist groups of backpackers of marijuana navigate their way through the desert from Mexico to the drop off location in Arizona while steering them away from law enforcement. We are also armed with firearms to guard the backpackers from robbers and law enforcement. On May 2, 2016, we received a call for assistance from a leader/guide of a group of backpackers that a group which was ahead of his group of backpackers was being robbed of their marijuana. I responded to the area where the leader/guide, Severo Nieblas-Diaz, reported the robbery. I came armed with a firearm. I was accompanied by two other individual, Ulises Alaim Saijas-Zamorano and Vidal Quinones-Gonzales, who were also armed with firearms. We climbed a mountain, found the two bajadores (robbers) who had robbed the marijuana and all three of us started shooting towards the two individuals. One of the individuals was hit. We saw ten bundles of marijuana which were being guarded by the two robbers. I submit that the ten bundles marijuana weighed approximately 223 kilograms. I was to be paid between $1,000 to $2,000 to recover the stolen marijuana bundles. The recovered bundles would then be delivered, as intended, for further distribution. The four firearms that were used to recover the stolen marijuana included a Century Arms C306 Sportster .308 caliber rifle, bearing serial number C308E02778, a collapsible stock Model AT-47 AK-variant rifle, bearing serial number FS002341, a 9 mm pistol (which was not recovered), and a smaller black rifle (which was also not recovered but both were reported to have been used).Plea Agreement (Doc. 93, p. 9). Dated September 19, 2016, Ojeda-Ramirez signed the plea agreement. The plea agreement also provided Ojeda-Ramirez agreed the possible penalties for the offenses provided for a five year minimum and a forty year maximum prison term for Count One and a five year minimum and a lifetime imprisonment term for Count Two, with the sentences to run consecutively. Additionally, the plea agreement set forth the agreement of the parties which was for a sentencing range of 120 months (10 years) to 144 months (12 years) of imprisonment.
Pursuant to the United States Sentencing Guidelines ("USSG"), Ojeda-Ramirez's total offense level was 21, with a criminal history score of zero, and a criminal history category of I. Pre-Sentence Report ("PSR") (Doc. 157, p. 8). This resulted in a guideline imprisonment range of 37 to 46 months. However, because the statutorily authorized minimum sentences were greater than the calculated guideline range, the minimum guideline terms of imprisonment were 60 months. Id. at 10; see USSG §2K2.4(b) and App. Note 2(A). Further, consecutive sentences were required under USSG § 5G1.2(b).
This Court sentenced Ojeda-Ramirez of February 2, 2017. During the sentencing proceeding, the Court adopted the advisory guideline calculations, to which there were no objections. The Court sentenced Ojeda-Ramirez to 70 month terms of imprisonment for each count, with the terms to run consecutively. The terms of imprisonment were to be followed by 48 months of supervised release.
Ojeda-Ramirez was released from custody on April 21, 2023. Bureau of Prisons Inmate Locator, https://www.bop.gov/inmateloc/. Ojeda-Ramirez's Motion states he was transferred to a Mexican Penal Institution to complete his sentence. Motion (Doc. 177, p. 2).
USSG Amendment 821
A judgment of conviction that includes a sentence of imprisonment may not be modified by a district court except in limited circumstances. 18 U.S.C. § 3582(b). This section establishes an exception to the general rule of finality. Dillon v. United States, 560 U.S. 817, 824 (2010). The statute provides:
[I]n 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 . . ., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). Under this provision, the Court must undertake a two-step process to determine whether a final sentence should be modified based on a sentencing range that has been lowered by the Sentencing Commission.
The Court must first determine if a retroactive amendment to the USSG lowered a defendant's guideline range and whether a reduction is consistent with the applicable policy statements. Dillon, 560 U.S. at 826. The Court must then consider the § 3553(a) factors to determine if it will exercise its discretion to reduce that defendant's sentence. However, 18 U.S.C. § 3582(c)(2) does not authorize a reduction in a defendant's term of imprisonment as not consistent with the policy statement if an "amendment . . . does not have the effect of lowering the defendant's applicable guideline range." USSG 1B1.10(a)(2)(B); see also USSG 1B1.10, Application Note 1.
Amendment 821 to the USSG took effect November 1, 2023, and applies retroactively. See Sentencing Guidelines for the United States Courts, 88 Fed.Reg. 60534 (Sept. 1, 2023); Amendment 821, United States. Sentencing Commission, https://www.ussc.gov/guidelines/amendment/821 (last accessed March 18, 2024). Amendment 821 is bifurcated into Parts A and B.
Part A of Amendment 821 limits the criminal history impact of “status points” under USSG. § 4A1.1. Specifically, with regard to such "status points," a defendant who committed an offense "while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status," previously received two additional criminal history points. Amendment 821 amends § 4A1.1 to eliminate such status points for any defendant who otherwise has six or fewer criminal history points and apply one point, instead of two, for defendants who otherwise present seven or more criminal history points. "Part B, Subpart 1 of the amendment provides a two-level reduction in the offense level for certain zero-point offenders that is, defendants with no criminal history whose offenses meet the guideline's criteria." United States v. Mariscal-Sanabia, No. 219CR00251GMNNJK6, 2024 WL 841094, at *3 (D. Nev. Feb. 27, 2024), quoting United States v. Diaz-Diaz, No. CR19-0187-JCC, 2023 WL 9040636, at *1 (W.D. Wash. Dec. 29, 2023).
Ojeda-Ramirez seeks a sentence reduction pursuant to Part B of Amendment 821. "Part B, Subpart 1 of the amendment provides a two-level reduction in the offense level for certain zero-point offenders that is, defendants with no criminal history whose offenses meet the guideline's criteria." United States v. Mariscal-Sanabia, No. 219CR00251GMNNJK6, 2024 WL 841094, at *3 (D. Nev. Feb. 27, 2024), quoting United States v. Diaz-Diaz, No. CR19-0187-JCC, 2023 WL 9040636, at *1 (W.D. Wash. Dec. 29, 2023). However, to receive such an adjustment, a defendant must meet all of the following criteria:
(1) the defendant did not receive any criminal history points from Chapter Four, Part A;
(2) the defendant did not receive an adjustment under § 3A1.4 (Terrorism);
(3) the defendant did not use violence or credible threats of violence in connection with the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
(7) the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(8) the instant offense of conviction is not covered by § 2H1.1 (Offenses Involving Individual Rights);
(9) the defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and
(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848[.] USSG § 4C1.1(a), emphasis added.
In this case, the factual basis establishes Ojeda-Ramirez used violence and possessed a firearm in connection with Count I and a firearm is the subject of Count II. Under the plain language of USSG § 4C1.1(a), Ojeda-Ramirez does not meet the criteria and is not eligible for relief.
Accordingly, IT IS ORDERED:
1. The pro se Motion for Reduction of Sentence based on the U.S.S.G. Amendment to Section 4C1. 1[,] the "Zero-Point" Criminal History Defendant Under 18 U.S.C. § 3582(c)(2) ("Motion") (Doc. 177) is DENIED.
2. The Clerk of Court shall mail a copy of this Order to Ojeda-Ramirz at the following address:
Pedro Ojeda-Ramirezz # 59923-408
Calle 300 KM. 3.5 Predio
Jesus Maria entre Canal 25 y 27
Ejido la Chuparrosa, C.P. 81162
Guasave, Sinaloa
MEXICO