Opinion
CRIM. NO. 13-00021 SOM CIV. NO. 16-00239 SOM/KSC
10-03-2017
LEVI SAELUA, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION SEEKING RELIEF UNDER AMENDMENT 782
Defendant Levi Saelua, Jr., pled guilty to Count 1 of the Superseding Indictment, which charged him with a conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine and a quantity of marijuana in violation of 21 U.S.C. § 846. See ECF No. 223, PageID # 591 (Judgment in a Criminal Case). Pursuant to 18 U.S.C. § 3582(c)(2), Saelua filed a motion seeking resentencing with a two-level reduction of his base offense level under Amendment 782 to the United States Sentencing Commission Guidelines ("U.S.S.G."). See ECF No. 282. The court denies the motion.
Under 18 U.S.C. § 3582(c)(2), this court may reduce a "term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." In United States v. Dunn, 728 F.3d 1151, 1155 (9 Cir. 2013), the Ninth Circuit explained that § 3582(c)(2) authorizes district courts to modify sentences when a sentencing range has subsequently been lowered by the sentencing commission.
The applicable guideline range for drug offenses is usually "determined under U.S.S.G. § 2D1.1(c), which correlates the length of the prison term with the quantity of drugs." United States v. Wesson, 583 F.3d 728, 731 (9 Cir. 2009). Amendment 782, effective November 1, 2014, generally revised the Drug Quantity Table in § 2D1.1 downward by two levels. This court is therefore authorized by § 3582(c)(2) to modify qualifying sentences pursuant to Amendment 782 to reflect that two-level adjustment in offense levels.
However, Amendment 782 does not lower the sentencing range for career offenders whose offense levels and guideline ranges are based on U.S.S.G. § 4B1.1, rather than U.S.S.G. § 2D1.1(c). See United States v. Cook, ___ F.3d ___, 2017 WL 3816053, at *5 (6 Cir. Sept. 1, 2017) (Amendment 782 does not affect the sentencing range of a career offender sentenced based on U.S.S.G. § 4B1.1); United States v. Quintanilla, 868 F.3d 315, 321 (5 Cir. 2017) (same); United States v. Martin, 867 F.3d 428, 432-33 (3d Cir. 2017) (same); United States v. Smith, 814 F.3d 802, 804 (6 Cir. 2016) (same); United States v. Smith, 814 F.3d 802, 804 (6 Cir. 2016) (same); United States v. Avila, 2015 WL 1622047, at *1 (D. Haw. Apr. 10, 2015). The Ninth Circuit, in a series of unpublished opinions, has agreed that defendants sentenced as career offenders under U.S.S.G. § 4B1.1 are ineligible for sentence reductions under Amendment 782. See United States v. Dewey, 2017 WL 1435437, at *1 (9 Cir. Apr. 24, 2017); United States v. Mitchell, 2017 WL 1435651, at *1 (9 Cir. Apr. 24, 2017); United States v. Rael, 689 F. App'x 571 (9 Cir. 2017); United States v. Romero, 675 F. App'x 777 (9 Cir. 2017).
Saelua was sentenced as a career offender. See ECF No. 224 ¶ 81, PageID # 623 (Presentence Investigation Report designating Saelua as career offender); ECF No. 221 (adopting Presentence Investigation Report). Rather than computing his offense level based on the amount of drugs involved, which would have been a level 34 under U.S.S.G. § 2D1.1, Saelua was determined to have an offense level of 37 pursuant to U.S.S.G. § 4B1.1 because he was a career offender whose crime had a statutory maximum sentence of life imprisonment. See ECF No. 224 ¶ 65, PageID # 619. This court has recently rejected a § 2255 challenge to Saelua's career offender designation. See ECF Nos. 324 and 333. As Saelua himself has recently conceded, Amendment 782 is inapplicable here, as Saelua's offense level was not based on U.S.S.G. § 2D1.1 and his status as a career offender has not changed. See Defendant Levi Saelua, Jr.'s Memorandum Regarding Defendant's Motion Pursuant to USSG Amendment 782 Two-Level Variance, ECF No. 335, PageID # 1459 ("Given that Defendant Saelua was sentenced as a career criminal under U.S.S.G. §4B1.1, Defendant submits that he is not entitled to a reduction of his sentence pursuant to §3582(c)(2) and Amendment 782."). Saelua's motion for a two-level reduction of his offense level is therefore denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 3, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge