Opinion
No. CR-02-00531 RSWL-1.
March 6, 2008
ORDER GRANTING DEFENDANT'S MOTION TO RECONSIDER ORDER DECLINING TO ADJUST DEFENDANT'S PREVIOUSLY ISSUED SENTENCE
On June 29, 2007, the Ninth Circuit Ordered a limited remand of this case pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). The Ninth Circuit AFFIRMED Defendant's convictions in all other respects, including the Sentencing Guidelines used, the determination of the base line offense and the enhancements.
On October 26, 2007, after due consideration of United States v. Ameline, 409F.3d 1073 (9th Cir. 2005), this Court upheld Defendant's previously imposed sentence.
On January 7, 2008, Defendant filed a Motion to Set Aside Court's Ruling and Order After Consideration of Joint Status Reports, For Excusable Neglect and Good Cause. The Government filed an Opposition to this Motion, on February 25, 2008.
Having considered all papers submitted and all arguments pertaining to the above Motion, the Court hereby RULES AS FOLLOWS:
The Court GRANTS Defendant's Motion to the extent it seeks reconsideration of the Court's prior rulings. The Court will therefore consider all documents filed by Defendant in his Joint Status Report, including Defendant's military record.
The Court commends Defendant for his service in the military, and considers it under 18 U.S.C. § 3553. Indeed, the Court previously considered this information when issuing the original sentence. Nevertheless, the Court declines to alter Defendant's sentence. The Court confirms that had the Court considered the Sentencing Guidelines merely advisory at the time of the original sentencing, and considered Defendant's military record, the Court would not have imposed a materially different sentence on Cenobio Humberto Herrera, Sr., than the sentence originally imposed.
The Court therefore DENIES Defendant's Motion to Set Aside the October 26, 2007 Order.
Having now complied with both the Ninth Circuit and United States v. Ameline, no further briefing or actions are required by the parties. Defendant's sentence will not be altered.