Opinion
2:19CR29-PPS
11-07-2023
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY VALDIVIA, Defendant.
OPINION AN ORDER
PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT
This cause is before the court on a motion for reduction of sentence filed by defendant Anthony Valdivia, invoking the recent Amendment 821 to the United States Sentencing Guidelines. The request is technically premature because, although the amendment went into effect on November 1, 2023, it cannot be applied retroactively until February 1, 2024. Still, rather than cause any delay, I have reviewed the matter now as contemplated by the court's General Order No. 2023-32. Because the motion must be denied, there is no reason to delay my ruling.
Anthony Valdivia entered a plea of guilty to a charge of conspiracy to distribute heroin and to possess with intent to distribute more than one kilogram of heroin. [DE 96, 99.] On June 16, 2022, I sentenced Valdivia to a term of 126 months' imprisonment. [DE 135 at 2.] Valdivia now seeks relief on the basis of the amendment authorizing a reduction of sentence for defendants who had zero criminal history points under the sentencing guidelines at the time of their original sentencing. Although Valdivia meets that criterion [DE 118 at ¶¶38, 39], he fails to meet another requirement of an adjustment for zero-point offenders. Under the new U.S.S.G. §4C1.1(a)(7), a defendant must not have possessed a firearm in connection with the offense. In Valdivia's presentence investigation report, the offense level computation included the addition of two points under §2D1.1(b)(1) for possession of a dangerous weapon, because 25 firearms “were recovered from the defendant's residence during the execution of a search warrant at the residence where drugs were also recovered.” [DE 118 at ¶25.] Because Valdivia does not meet the requirements for consideration of a reduced sentence under Amendment 821, his motion will be denied.
ACCORDINGLY:
Defendant Anthony Valdivia's Motion for Reduction of Sentence Pursuant to 18 U.S.C. §3582(c)(2) [DE 144] is DENIED.
The Clerk shall provide a copy of this opinion and order to Valdivia at the institutional address where he is housed.
SO ORDERED.