Opinion
Case No. CR2:98-060.
February 12, 2009
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendant Sean B. Quiero's ("Quiero") pro se Motion to modify the terms of his imprisonment pursuant to 18 U.S.C. § 3582(c)(2) (Doc. o. 46). On June 3, 1998, Quiero entered into a Federal Rule of Criminal Procedure 11(e)(1)(C) plea agreement with the Government, which included an agreed term of imprisonment of 213 months. The Court adopted that plea agreement and sentenced Quiero in accordance its terms. Quiero now asks the Court to reduce his sentence to 150 months based on a November 1, 2000 amendment to the relevant sentencing guideline. For the reasons explained below, the Court DENIES Quiero's Motion.
II. FACTS
In 1998, Quiero was charged with five counts of robbery affecting interstate commerce and five counts of carrying a firearm during the commission of a crime of violence. Quiero pled guilty to and was convicted of two counts of armed robbery in violation of 18 U.S.C. § 1951 (Counts 1 and 3) and two counts of carrying and using a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c) (Counts 2 and 4). The parties entered into Fed.R.Crim.P. 11(e)(1)(C) plea agreement in which Quiero pled guilty to Counts 1-4 of the indictment.
Federal Rule of Criminal Procedure 11 was amended in 2000. What was previously Fed.R.Crim.P. 11(e)(1)(C) is now Fed.R.Crim.P. 11(c)(1)(C). For the sake of consistency with the record in this case, however, the Court will continue to refer to Quiero's plea agreement as a Rule 11(e)(1)(C) agreement throughout this Opinion.
The plea agreement provides in pertinent part:
2. Defendant SEAN BOUVIER QUIERO understands that the maximum penalty that may be imposed on each count pursuant to his plea of guilty to Counts 1 and 3 is a term of imprisonment of 20 years, 3 years of supervised release and a fine of $250,000; that the term that may be imposed pursuant to his plea of guilty to Count 2 is a mandatory minimum term of imprisonment of 5 years consecutive to the term imposed on Counts 1 and 3, and a three year period of supervised release, and a maximum fine of $250,000; and that the term that may be imposed pursuant to his plea of guilty to Count 4 is a mandatory minimum term of imprisonment of 20 years consecutive to the term imposed on Counts 1, 2, and 3, a three year term of supervised release, and a maximum fine of $250,000.
6. . . . [T]he United States Attorney for the Southern District of Ohio and Defendant SEAN BOUVIER QUIERO agree, pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure, to a binding sentence of two hundred thirteen (213) months imprisonment.
In exchange for the plea agreement, the United States dropped three of the robbery counts and three of the firearm counts initially charged in the indictment.
On August 27, 1998, Quiero was sentenced. This Court accepted the plea agreement and imposed the 213 month sentence proposed by the agreement. Specifically, Quiero was sentenced to 33 months on each armed robbery count, to run concurrently; 36 months on his first § 924(c) Count to run consecutive to the armed robbery counts; and 144 months on his second § 924(c) Count to run consecutive all other counts.
III. LAW ANALYSIS
Quiero requests a modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2) , which permits a court to modify a defendant's sentence when the sentencing range for the crime which the defendant was sentenced has been lowered. That statute provides:
The court may not modify a term of imprisonment once it has been imposed except . . . 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), upon motion of the defendant . . . after considering the factors set forth in section 3553(a) . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). Thus, in some situations, 18 U.S.C. § 3582(c)(2) empowers a court to reduce a defendant's sentence when the relevant sentencing guidelines have been retroactively amended. See United States v. Horn, ___ F.Supp.2d ___, No. 3:01-cr-00142, 2008 WL 5448817, at *4 (M.D. Tenn. Dec. 16, 2008) (granting such a motion).
United States Sentencing Guideline § 2k2.4 applies to 18 U.S.C. § 924(c) offenses. That guideline was retroactively amended by the Sentencing Commission on November 1, 2000. U.S. Sentencing Guidelines Manual § 2K2.4 (2000). Quiero argues that the 144 month sentence for his second 18 U.S.C. § 924(c) conviction should be modified based on the 2000 amendments to U.S.S.G. § 2k2.4.
The Sixth Circuit, however, has ruled that where, as here, the defendant entered into a Rule 11(e)(1)(C) plea agreement the court does not have the power to modify the defendant's sentence. United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004). Once the court has accepted a Rule 11(e)(1)(C) plea agreement and sentenced the defendant pursuant to that agreement, it binds both the court and the parties. Id. at 378. In reaching that conclusion, the Peveler court reasoned that retroactive amendments to the guidelines could not justify a modification to the defendant's sentence because a defendant sentenced pursuant to a Rule 11(e)(1)(C) plea agreement was not actually sentenced under the guidelines. Id. at 378 (citing United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996)); see also United States v. Hines, No. 3:02-CR-14, 2008 WL 2169516, at *2 (E.D. Tenn. May 22, 2008) (holding that the court lacked power to modify the defendant's sentence based on the retroactive amendment of the sentencing guidelines). Similarly, Quiero was not sentenced under U.S.S.G. § 2k2.4 for his 18 U.S.C. § 924(c) violations; rather, he received the sentence he agreed to in his plea agreement, which was adopted by this Court. Therefore, this Court has no power to modify his sentence based on the retroactive amendments to the sentencing guideline and his Motion to modify would be denied on this basis alone.
Moreover, even if the Court could modify Quiero's sentence based on the retroactive amendment of U.S.S.G. § 2k2.4, a reduction to Quiero's sentence would not be warranted based on the application of the amended version of that guideline. At the time of Quiero's conviction, section 924(c) violations carried statutory mandatory minimum sentences of 5 years (60 months) of imprisonment for the first conviction and an additional 20 years (240 months) for a second conviction. 18 U.S.C. § 924(c)(1) (Supp. 2, 1994) (current version at 18 U.S.C. § 924 (2006)). Pursuant to his plea agreement, Quiero was only sentenced to 36 months on his first § 924(c) violation and 144 months on his second § 924(c) violation.
The statutory minimum for a subsequent violation of § 924 has been revised upwards to a 25 year minimum term of imprisonment. 18 U.S.C. § 924(c)(1)(C)(i) (2006).
On November 1, 2000, the Sentencing Commission retroactively amended U.S.S.G. § 2K2.4 by, among other things, adopting Amendments 598 and 599. U.S. Sentencing Guidelines Manual § 2K2.4 (2000). Those amendments altered, respectively, application notes 1 and 2 to U.S.S.G. § 2k2.4. The amended application notes read in pertinent part:
1. . . . Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory minimum terms of imprisonment . . . the guideline sentence for a defendant convicted under 18 U.S.C. § 924(c) or § 929(a) is the minimum term required by the relevant statute . . . § 924(c) . . . requires a term of imprisonment imposed under this section to run consecutively to any other term of imprisonment.
A sentence above the minimum term required by 18 U.S.C. § 924(c) or § 929(a) is an upward departure from the guideline sentence. A departure may be warranted, for example, to reflect the seriousness of the defendant's criminal history . . .
2. If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction . . . Do not apply any weapon enhancement in the guideline for the underling offense. . . .Id. at cmt. n. 1, n. 2 (emphasis added). The amendment of application note 1 was intended to clarify:
that the guideline sentence is the minimum term required by the statute of conviction, that a term greater than this minimum is an upward departure and should be imposed using the normal standards and procedures that apply to departures from the guideline range, and that such departures are invited in certain circumstances.Id. at Supp. App. C, p. 67. The purpose of the amendment of note 2 was to prevent "duplicative punishment" for a single offense and to conform application of guideline weapons enhancements with overarching guideline principles. Id. at Supp. App. C, p. 69.
Quiero argues that the 144 month sentence he received on Count 4 (the second 18 U.S.C. § 924(c) violation) was an upward departure from the minimum guideline sentence. He further argues that the upward departure was improper under the 2000 amendments to U.S.S.G. § 2k2.4 because he did not qualify for an upward enhancement based on prior convictions. The United States contends, and the Court agrees, that the U.S.S.G. amendment Quiero relies on did not have any affect on his sentence.
Quiero appears to misunderstand the interaction between the statutory minimum sentence required under 18 U.S.C. § 924(c) and U.S.S.G. § 2K2.4. He seems to believe that his sentence for all offenses must be independently calculated under the sentencing guidelines (ignoring the mandatory minimum sentence under 18 U.S.C. § 924(c)) using only his offense level, all possible enhancements, and his criminal history score to produce a figure that represents his "total punishment." He believes that the statutory minimum sentence under 18 U.S.C. § 924(c) is then subtracted from that number and subsequently re-added by the Court. Essentially, he believes that the independent calculation under the guideline sentencing tables caps his total possible term of imprisonment to 150 months from which the statutory minimum must be first removed and then re-added both to avoid impermissibly increasing his total sentence and to satisfy the requirement that the 18 U.S.C. § 924(c) sentences run consecutively.
Quiero admits that his plea was made on the (correct) assumption that "he faced a minimum of five years incarceration for his first conviction under 924(c) and twenty years for each additional conviction." (Def.'s Response 2.)
Quiero's interpretation misconstrues the sentencing guidelines. As noted above, the statutorily mandated minimum sentence for a second § 924(c) conviction was an additional 20 years (240 months) to be served consecutively to his other sentences. 18 U.S.C. § 924(c)(1) (Supp. 2, 1994). The 2000 amendments to U.S.S.G. § 2k2.4 did not alter the statutory minimum terms of imprisonment required under 18 U.S.C. § 924(c). Instead, the amended application notes clearly state that "the guideline sentence for a defendant convicted under 18 U.S.C. § 924(c) . . . is the minimum term required by the relevant statute . . . § 924(c)." U.S. Sentencing Guidelines Manual § 2K2.4, cmt. n. 1 (2000) (emphasis added). This means that the term of imprisonment for 18 U.S.C. § 924(c) violations under the guidelines is that required by the statute itself, i.e., the guidelines do not cap the statutory sentence but rather adopt it.
Consequently, the guideline sentence for Quiero's second § 924(c) conviction was 240 months, even under the amended guideline. As Quiero was only sentenced to 144 months on Count 4, his sentence actually represented a downward departure from the sentencing guideline. Therefore, the Court would not reduce Quiero's sentence based on the application of the revised guideline even if it had the power to do so.
IV. CONCLUSION
For the reasons explained above, Defendant's Motion to modify the terms of his imprisonment pursuant to 18 U.S.C. § 3582(c)(2) (Doc. No. 46) is DENIED.