Opinion
HEATHER E. WILLIAMS, Federal Defender, DAVID M. PORTER, Assistant Federal Defender Counsel Designated for Service, acramento, California, Attorneys for Defendant FREDI OCTAVIO-VALDEZ.
BENJAMIN B. WAGNER, United States Attorney, JASON HITT, Assistant U.S. Attorney, Attorney for Plaintiff UNITED STATES OF AMERICA.
STIPULATED MOTION AND ORDER TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2) RETROACTIVE DRUGS-MINUS-TWO REDUCTION CASE
TROY L. NUNLEY, District Judge.
Defendant, FREDI OCTAVIO-VALDEZ by and through his attorney, Assistant Federal Defender David M. Porter, and plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Assistant U.S. Attorney Jason Hitt, hereby stipulate as follows:
1. Pursuant to 18 U.S.C. § 3582(c)(2), this Court may reduce the term of imprisonment 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);
2. On March 3, 2009, this Court sentenced Mr. Octavio-Valdez to a term of 120 months imprisonment on each of Counts 1 and 2, to be served concurrently, for a total term of 120 months;
3. His total offense level was 29, his criminal history category was I, and, because he was safety-valve eligible, the resulting guideline range was 87 to 108 months. Pursuant to the parties' plea agreement, he received an upward departure of two levels based on role, and a sentence at the middle of range;
4. The sentencing range applicable to Mr. Octavio-Valdez was subsequently lowered by the United States Sentencing Commission in Amendment 782, made retroactive on July 18, 2014, see 79 Fed. Reg. 44, 973;
5. Mr. Octavio-Valdez's total offense level has been reduced from 29 to 27, and his amended guideline range is 70 to 87 months. Substituting only Amendment 782 for the corresponding guideline provisions that were applied when the defendant was sentenced, and leaving all other guideline application decisions unaffected, see USSG § 1B1.10(b)(1), would produce a term of 98 months;
6. Accordingly, the parties request the Court enter the order lodged herewith reducing Mr. Octavio-Valdez's term of imprisonment to 98 months imprisonment on each of Counts 1 and 2, to be served concurrently, for a total term of 98 months.
7. In light of the parties' stipulation, the noticed motion filed April 22, 2015, is withdrawn.
ORDER
This matter came before the Court on the stipulated motion of the defendant for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
The parties agree, and the Court finds, that Mr. Octavio-Valdez is entitled to the benefit Amendment 782, which reduces the total offense level from 29 to 27, resulting in an amended guideline range of 70 to 87 months. Applying a mid-range sentence with the same two-level upward departure as the one imposed at the initial sentencing would produce a term of 98 months.
IT IS HEREBY ORDERED that the term of imprisonment imposed in March 2009 is reduced to a term of imprisonment to 98 months imprisonment on each of Counts 1 and 2, to be served concurrently, for a total term of 98 months.
IT IS FURTHER ORDERED that all other terms and provisions of the original judgment remain in effect. The clerk shall forthwith prepare an amended judgment reflecting the above reduction in sentence, and shall serve certified copies of the amended judgment on the United States Bureau of Prisons and the United States Probation Office.
Unless otherwise ordered, Mr. Octavio-Valdez shall report to the United States Probation Office within seventy-two hours after his release.
The noticed motion having been withdrawn, the hearing set for May 7, 2015 is VACATED.