Opinion
21-20008-11-DDC
07-30-2024
UNITED STATES OF AMERICA, Plaintiff, v. VICTOR TROCHES-REYES (11), Defendant.
MEMORANDUM AND ORDER
Daniel D. Crabtree United States District Judge
Defendant Victor Troches-Reyes has filed a pro se Motion to Reduce Sentence under Amendment 821 to § 4C1.1 of the United States Sentencing Guidelines. Doc. 319. The government filed a Response. Doc. 321. The court lacks jurisdiction and dismisses Mr. Troches-Reyes's motion for the following reasons.
Because defendant proceeds pro se, the court construes his filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”). But, defendant's pro se status does not excuse him from complying with the court's rules or facing the consequences of noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
I. Background
On September 15, 2022, Mr. Troches-Reyes entered a guilty plea (Doc. 146) to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, violating 21 U.S.C. § 846. On August 14, 2023, a federal probation officer prepared an Amended Presentence Investigation Report (PSR). Doc. 257. Based on the quantity of drugs attributed to the defendant-4.5 kilograms of “ice” methamphetamine-and a mitigating role adjustment under Guideline § 3B1.2, the PSR determined that Mr. Troches-Reyes had a base offense level of 34. Id. at 42-43 (PSR ¶ 135). The PSR added two points under Guideline § 2D1.1(b)(1) because Mr. Troches-Reyes possessed a dangerous weapon. Id. at 43 (PSR ¶ 136). Two points were added under Guideline § 2D1.1(b)(12) because Mr. Troches-Reyes maintained a premises for the purposes of distributing methamphetamine-namely, he stored approximately 28 kilograms of methamphetamine for one month and was paid $1,500 per week to store the methamphetamine. Id. (PSR ¶ 137). The PSR deducted two points under § 3B1.2(b) because Mr. Troches-Reyes was a minor participant in the criminal activity. Id. (PSR ¶ 139). The PSR deducted three points because Mr. Troches-Reyes accepted responsibility and timely notified authorities of his intent to enter a plea. Id. (PSR ¶¶ 143-44). Based on the 2021 Guidelines Manual, Mr. Troches-Reyes had a total offense level of 33. Id. (PSR ¶ 145).
Mr. Troches-Reyes's criminal history produced one criminal history point. Id. at 44 (PSR ¶ 151). The PSR added two points under Guideline § 4A1.1(d) because Mr. Troches-Reyes had committed the current offense while under a criminal justice sentence. Id. (PSR ¶ 152). So, together, Mr. Troches-Reyes had three criminal history points and a criminal history category of II. Id. (PSR ¶ 153). “Based upon a total offense level of 33 and a criminal history category of II, the guideline imprisonment range [was] 151 months to 188 months.” Id. at 47 (PSR ¶ 171). The parties' binding plea agreement recommended a sentence at the low end of the advisory guideline range. Doc. 146 at 4 (Plea Agreement). On September 5, 2023, the court sentenced Mr. Troches-Reyes to imprisonment for 81 months and five years of supervised release. Doc. 265 at 2, 3.
Mr. Troches-Reyes asserts that Amendment 821 to § 4C1.1 of the United States Sentencing Guidelines applies to his September 2023 sentence and reduces his offense level by two levels. Doc. 319 at 1. The court addresses Mr. Troches-Reyes's motion, but first, recites the governing legal standard.
II. Legal Standard
“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 [defendant's] request.” United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997). Section 3582(c) of Title 18 of the United States Code grants the court the authority to modify a sentence in just three scenarios:
(1) on motion of the Director of the Bureau of Prisons or the defendant, after defendant has exhausted administrative remedies, if special circumstances exist;
(2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or
(3) if the sentencing range is subsequently lowered by the Sentencing Commission.United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008). Mr. Troches-Reyes asks the court to modify his sentence based on the third circumstance-a subsequent change in the sentencing range. Doc. 319.
Effective November 1, 2023, Amendment 821 Part B created Guideline § 4C1.1, which lowers the offense level by two levels for certain defendants with zero criminal history points. U.S. Sent'g Guidelines Manual § 4C1.1 (U.S. Sent'g Comm'n 2023). The Amendment applies to a defendant who “meets all of the . . . criteria” in subsections (a)(1) through (a)(10):
(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;Id.
III. Analysis
Mr. Troches-Reyes loses his bid for a reduced sentence at the first step, subsection (a)(1), which requires that “the defendant did not receive any criminal history points from Chapter Four, Part A[.]” Id. § 4C1.1(a)(1) (emphasis added). Mr. Troches-Reyes had received three criminal history points. Doc. 257 at 44 (PSR ¶¶ 151-53). But even if Mr. Troches-Reyes was a zeropoint offender, subsection (a)(7) independently bars a reduced sentence because it requires that “the defendant did not possess . . . a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense[.]” Id. § 4C1.1(a)(7). Mr. Troches-Reyes received an enhancement under Guideline § 2D1.1(b)(1) because he possessed a dangerous weapon. Doc. 257 at 43 (PSR ¶ 136).
In short, the new § 4C1.1 added to the Sentencing Guidelines doesn't apply to Mr. Troches-Reyes. Because Mr. Troches-Reyes's sentencing range remains unchanged, his request doesn't fall under 18 U.S.C. § 3582(c)(2). The court thus lacks jurisdiction and must dismiss Mr. Troches-Reyes's motion (Doc. 319). See United States v. Whittaker, 777 Fed.Appx. 938, 940 (10th Cir. 2019) (remanding for district court to dismiss motion to reduce sentence for lack of jurisdiction because defendant didn't qualify for a reduction under § 3582(c) (first citing United States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014) (“[D]ismissal for lack of jurisdiction rather than denial on the merits is the appropriate disposition of [defendant's] § 3582(c)(2) motion.”); then citing United States v. Graham, 704 F.3d 1275, 1279 (10th Cir. 2013) (concluding “dismissal rather than denial is the appropriate disposition” when sentence reduction is not authorized by § 3582(c)(2)))); United States v. Andrade, No. 18-10129, 2024 WL 1461816, at *1 (D. Kan. Apr. 4, 2024) (dismissing Amendment 821 motion to reduce sentence when defendant failed to meet all § 4C1.1 criteria).
IV. Conclusion
The court is without jurisdiction to consider Mr. Troches-Reyes's current motion. Thus, the court dismisses Mr. Troches-Reyes's motion for lack of jurisdiction.
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Troches-Reyes's Motion to Reduce Sentence (Doc. 319) is dismissed.
IT IS SO ORDERED.