Opinion
Case No. 14-20128-JAR
06-08-2016
UNITED STATES OF AMERICA, Plaintiff, v. RUDY PEREZ, Defendant.
MEMORANDUM AND ORDER
On May 14, 2015, Defendant Rudy Perez entered into a written Fed. R. Crim. P. 11(c)(1)(C) plea agreement on one count of possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i) and one count of felon in possession of a firearm and ammunition in violation of §§ 922(g)(1) and 924(a)(2). The parties agreed to a proposed Rule 11(c)(1)(C) sentence of 24 months' imprisonment for Count 3 and 60 months' imprisonment on Count 2, which would be consecutive to one another.
Doc. 15.
Id. at 2.
A presentence investigation report was prepared and calculated Defendant's base offense level at 20, a two-level increase for conduct involving at least four firearms pursuant to U.S.S.G. § 2K2.1(b)(1)(A), and a three-level decrease for acceptance of responsibility, for a total offense level of 19. Defendant's criminal history score was II, resulting in a Guidelines range of 33 to 41 months on Count 3 and a mandatory consecutive sentence of 60 months on Count 2. Defendant was subsequently sentenced to a total term of 84 months' imprisonment.
Doc. 20.
Doc. 22.
This matter is now before the Court on Defendant's motion filed pursuant to 18 U.S.C. § 3582(c) to modify his sentence pursuant to Amendment 782 (Doc. 24). Section 3582(c)(2) permits a district court to modify a sentence where it sentenced a defendant "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." "Unless the basis for resentencing falls within one of the specific categories authorized by section 3582(c), the district court lack[s] jurisdiction to consider [a defendant's] request." Here, Defendant's sentence was not based on a Guidelines sentencing range. Instead, Defendant pleaded guilty under a Rule 11(c)(1)(C) plea agreement that required a total 84-month sentence, and which did not refer to a proposed sentence "within a particular Guidelines sentencing range." Accordingly, this Court has no jurisdiction to reduce Defendant's sentence under § 3582(c)(2), and his motion is dismissed for lack of jurisdiction.
United States v. Gray, 630 F. App'x 809, 811 (10th Cir. 2015) (quoting United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997)).
Freeman v. United States, 564 U.S. 522, 538 (2011).
Gray, 630 F. App'x at 812 (citing United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014)).
Moreover, even if the Court had jurisdiction to reduce Defendant's sentence, he is ineligible for relief under Amendment 782. The Amendment retroactively reduces base-offense levels corresponding to the same weight of controlled substances listed in U.S. Sentencing Guidelines Manual § 2D1.1, effectively lowering the Guidelines minimum sentences for drug offenses. It has no effect on sentences like Defendant's, which was calculated by applying §§ 2K2.1 and 2K2.4, the Guidelines relevant to his firearms charges.
United Sates v. Goodwin, —F.App'x—, 2015 WL 7974633, at *2 (10th Cir. Dec. 7, 2015).
U.S.S.G. Supp. App. C., amend. 788 (2014); United States v. Gay, 771 F.3d 681, 683 n.1 (10th Cir. 2014). --------
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion for Reduction of Sentence (Doc. 24) is DISMISSED for lack of jurisdiction.
IT IS SO ORDERED. Dated: June 8, 2016
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE