Opinion
CR. NO. 2:07-0332 WBS
04-20-2015
UNITED STATES OF AMERICA, Plaintiff, v. JORGE ALBERTO AVILA NAVARRO, Defendant.
MEMORANDUM AND ORDER RE: MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)
Before the court is defendant Jorge Alberto Avila Navarro's Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2). (Docket No. 29.) The motion urges this court to disregard the U.S. Sentencing Commission's mandate that any court order reducing a term of imprisonment based on its reduction of certain drug-trafficking guidelines shall not take effect until November 1, 2015. As explained further below, the language of § 3582(c)(2) as well as Supreme Court and Ninth Circuit precedent bar defendant's request.
I. Factual and Procedural History
On August 2, 2007, the grand jury returned an Indictment charging defendant with possessing methamphetamine with the intent to distribute it. (Docket No. 6.) Defendant pleaded guilty pursuant to a written plea agreement with the government on October 10, 2008. (Docket No. 23.)
Judge Garcia held a sentencing hearing on December 19, 2008. (Docket No. 26.) Defendant was sentenced at a total offense level of thirty-three and a criminal history category of II. (See PSR ¶¶ 23, 30.) Under the 2008 Sentencing Guidelines, the resulting guideline range was 151 to 188 months. (See id. ¶ 16.) Based on the government's motion, defendant received a reduction from the low end of the applicable range and was ultimately sentenced to 113 months imprisonment. (See Def.'s Mot. ¶ 3; Docket No. 26.)
In 2014, the U.S. Sentencing Commission issued Amendment 782 to the U.S. Sentencing Guidelines ("U.S.S.G."), reducing guidelines ranges for certain drug offenses by two offense levels. In accordance with Congress's directive in 28 U.S.C. § 994(u), the Commission further determined that Amendment 782 should have retroactive effect for those currently serving terms of imprisonment. See U.S.S.G. App. C, Amend. 788 at 87 (Reason for Amendment). In response to public safety and administrative concerns, the Commission also determined that there should be a one-year delay in the amendment's effect. See id. Accordingly, the Commission amended the policy statement applicable to sentence reduction proceedings, U.S.S.G. § 1B1.10, to provide that "[t]he court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court's order is November 1, 2015, or later." Id.; U.S.S.G. § 1B1.10(e)(1).
On March 12, 2014, defendant filed the instant motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). Defendant states that Amendment 782 retroactively reduces his total offense level to thirty-one, with an applicable guideline range of 121 to 131 months. (Def.'s Mot. ¶ 4.) With a further reduction comparable to the one he originally received, defendant requests a total sentence reduction to 91 month imprisonment, which accounting for the time he has already served would result in his immediate release. (Id.)
However, defendant states that the Bureau of Prisons has projected his release date under his current sentence as September 9, 2015. (Def.'s Reply at 3.) Accordingly, defendant will likely complete his original term approximately two months before an order modifying his sentence under Amendment 782 could take effect. (See Def.'s Mot. ¶¶ 5-7.)
Defendant states this date is a projection that assumes he will benefit from the full extent of good conduct time accrued during his term. (Def.'s Reply at 3.) He could still lose his good conduct time while in custody, resulting in his projected release date moving to a date after November 1, 2015. (Id.)
II. Discussion
Section 3582(c)(2) provides:
The court may not modify a term of imprisonment once it has been imposed except that . . . 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 pursuant to 28 U.S.C. 994(o), . . . 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). "Section 3582(c)(2) instructs a district court to 'conside[r] the factors set forth in section 3553(a) to the extent that they are applicable,' but it authorizes a reduction on that basis only 'if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission'--namely, § 1B1.10." Dillon v. United States, 560 U.S. 817, 826 (2010). Courts have thus interpreted the statute to establish a "two-step inquiry." See id. at 826-27. "A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Id. at 826.
Under step one, any reduction of defendant's sentence pursuant to § 3582(c)(2) must be consistent with the Commission's policy statement in § 1B1.10. See Dillon, 560 U.S. at 826. The court may thus grant the sentence modification defendant requests only if "the effective date of the court's order is November 1, 2015, or later." See U.S.S.G. § 1B1.10(e)(1).
Nevertheless, defendant makes several arguments in support of his contention that the court should disregard § 1B1.10(e)(1). First, defendant points to § 3582(a)'s instruction that "in determining whether to impose a term of imprisonment, and . . . in determining the length of the term," the court must "recognize[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). This instruction is echoed in Congress's directive that the Commission "shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment." 28 U.S.C. § 994(k).
In the official commentary to the 2014 Guidelines, the Commission states that part of its rationale for delaying the release of otherwise eligible offenders was to
ensure that . . . all offenders who are to be released have the opportunity to participate in reentry programs and transitional services, such as placement in halfway houses, while still in the custody of the Bureau of Prisons, which increase their likelihood of successful reentry into society and thereby promotes public safety.U.S.S.G. App. C, Amend. 788 (2014). Defendant argues that this rationale violates Congress's directive and that enforcement of § 1B1.10(e)(1) thus amounts to an impermissible use of imprisonment for the purpose of providing correctional treatment. (Def.'s Mem. at 4-8.)
This argument conflates defendant's request to modify his sentence under § 3582(c)(2) with the imposition or lengthening of a term of imprisonment under § 3582(a). The Supreme Court has stated that § 3582(c)(2) authorizes "only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding," Dillon, 560 U.S. at 826, and that "the sentence-modification proceedings authorized by § 3582(c)(2) are readily distinguishable from other sentencing proceedings," id. at 830. This distinction arises in part from the "substantial role" that Congress gave the Commission in sentence-modification proceedings. See id. at 826. "A court's power under § 3582(c)(2) . . . depends in the first instance on the Commission's decision not just to amend the Guidelines but to make the amendment retroactive" as well as "the Commission's statements dictating 'by what amount' the sentence of a prisoner serving a term of imprisonment affected by the amendment 'may be reduced.'" Id. (quoting 28 U.S.C. § 994(u)).
Defendant argues that § 3582(a) applies to sentencing adjustments by pointing to Tapia v. United States, 131 S. Ct. 2382 (2011). Tapia held that § 3582(a)'s "recognizing" clause "precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation." See id. at 2385, 2388-91. However, Tapia and other cases that have applied § 3582(a) have done so only when imposing or lengthening a term of imprisonment. See id. at 2385 (involving the lengthening of a prison term at the initial sentencing hearing); United States v. Grant, 664 F.3d 276, 280 (9th Cir. 2011) (involving a prison term imposed upon revocation of supervised release). In contrast, motions under § 3582(c)(2) may only reduce a term of imprisonment. See 18 U.S.C. § 3582(c)(2) (stating that "the court may reduce the term of imprisonment").
In Tapia, the government apparently argued that "Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defendant's rehabilitation." Tapia, 131 S. Ct. at 2390 n.5. However, the Court found that the case did not require it to address that question and stated that "nothing in our decision expresses any views on it." Id.
Moreover, even if the court extended Tapia's holding to sentence reductions under § 3582(c)(2), the Commission offered several additional reasons for the one-year delay in § 1B1.10(e) beyond the need for prisoners to participate in reentry programs. The Commission stated that a delayed effective date is needed "to give courts adequate time . . . to make an individualized determination in each case of whether a sentence reduction is appropriate" and "to permit those agencies that will be responsible for offenders after their release to prepare for the increased responsibility." U.S.S.G. App. C, Amend. 788 at 87-88 (2014). Section § 3582(a) is silent with regard to such considerations and therefore does not preclude the court from relying on them as independent justifications for abiding by § 1B1.10(e)(1)'s delay.
Next, defendant contends that the Commission's selection of November 1, 2015, as the earliest possible release date is arbitrary, capricious, and contrary to the Commission's statutory authority. (Def.'s Mem. at 8-12.) Defendant argues that it is therefore not entitled to deference. (Id. at 9 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).)
This argument is precluded by circuit precedent. The Ninth Circuit has held that the Commission is not an "agency" subject to the requirements of the Administrative Procedures Act ("APA"). United States v. Tercero, 734 F.3d 979, 984 (9th Cir. 2013) (quoting Wash. Legal Found, v. U.S. Sentencing Comm'n, 17 F.3d 1446, 1450 (D.C. Cir. 1994)). Moreover, Congress's requirement that the Commission hold public hearings when promulgating the Guidelines does not extend to policy statements. Id. (citing 18 U.S.C. § 994(a)(1), (a)(2), (x)). The APA's "arbitrary and capricious" standard of review thus does not apply to the Commission's promulgation of § 1B1.10(e). See id. ("[T]o the extent Tercero relies on cases in which we have reviewed agency decisions under the APA's 'arbitrary and capricious' standard, those cases do not apply to the Commission's promulgation of § 1B1.10.").
Finally, defendant argues that the Commission's special instruction in § 1B1.10(e) violates constitutional principles of separation of powers. (Def.'s Mem. at 12-13.) The Supreme Court has generally rejected separation of powers challenges to the Commission's structure and authority. See, e.g., Mistretta v. United States, 488 U.S. 361, 412 (1989). The Ninth Circuit also recently rejected a specific challenge to § 1B1.10 in United States v. Davis, 739 F.3d 1222 (9th Cir. 2014), explaining that
Congress vested the Commission with the power to issue policy statements regarding the appropriate use of § 3582(c)(2) proceedings, and Congress bound the courts to those policy statements by requiring that any sentence reduction be consistent with applicable policy statements. Although the Commission crafted § 1B1.10(b), it is Congress that has made policy statements available as a general matter and binding on the courts. Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress's power to control the scope of judicial discretion regarding sentencing.Id. at 1226 (internal citations omitted). Although defendant points out that Davis interpreted subsection (b) of § 1B1.10, not subsection (e), he offers no compelling reason for distinguishing between the two. Congress directed the Commission to "specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment . . . may be reduced." 28 U.S.C. 994(u). Both subsections (b) and (e) appear to do exactly that.
Accordingly, the court is unable to grant defendant a sentence modification pursuant to Amendment 782 with immediate effect consistent with § 1B1.10.
Defendant also argues his status as a deportable non-citizen undercuts the Commission's rationales for imposing a one-year delay. Defendant provides no authority to support the materiality of his status and the "reasons for the enactment of the one-year delay" appear to have been made in a press release from July 18, 2014. (See Def.'s Mem. at 13-16.) Accordingly, the court is not persuaded that defendant's status has any bearing on the applicability of § 1B1.10(e).
IT IS THEREFORE ORDERED that defendant's motion for reduction of sentence pursuant to § 3582(c)(2) be, and the same hereby is, DENIED. Dated: April 20, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE