Opinion
No. CR 13-4016-1-MWB
07-23-2018
UNITED STATES OF AMERICA, Plaintiff, v. GABRIEL FUENTES-SALGADO, Defendant.
OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR MODIFICATION OF SENTENCE PURSUANT TO U.S.S.G. APP. C. AMENDMENT 794
This case is before me on defendant Gabriel Fuentes-Salgado's pro se June 15, 2018, Motion For Modification Of Sentence Pursuant To U.S.S.G. App. C. Amendment 794. On October 1, 2013, Senior District Judge Donald E. O'Brien sentenced Fuentes-Salgado to 100 months of imprisonment on Fuentes-Sagado's guilty plea to a charge of conspiracy to distribute 50 grams or more of actual (pure) methamphetamine. Fuentes-Salgado now seeks reduction of his sentence pursuant to 18 U.S.C. § 3582 based on Amendment 794 to the United States Sentencing Guidelines. Fuentes-Salgado acknowledges that Amendment 794 became effective on November 1, 2015, more than two years after he was sentenced, but he contends that it is retroactive.
As I explained in Altman v. United States, Nos. C16-3097-MWB, CR12-3010-MWB, 2016 WL 5219599 (N.D. Iowa September 21, 2016),
Section 3B1.2 instructs sentencing courts to decrease a defendant's offense level by four levels "[i]f the defendant was a minimal participant in any criminal activity," two levels "[i]f the defendant was a minor participant in any criminal activity," and three levels if the defendant's level of participation fell between minimal and minor. See U.S.S.G. § 3B1.2. The commentary to § 3B1.2 provides that a mitigating role adjustment is available to any defendant "who plays a part in committing the offense that makes him
substantially less culpable than the average participant." See id. § 3B1.2 cmt. n. 3(A). Amendment 794 "left the text of § 3B1.2 unchanged." United States v. Gomez, ___ F.3d ___, 2016 WL 3615688, at * 3 (5th Cir. July 5, 2016); see United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016); United States v. Casas, 632 Fed.Appx. 1003, 1004 (11th Cir. 2015). The amendment modified § 3B1.2's application notes by introducing a list of non-exhaustive factors that a sentencing court should consider in determining whether to apply a mitigating role adjustment. See Quintero-Leyva, 823 F.3d at 523.Altman, 2016 WL WL 5219599, at *1. Perhaps more importantly, for present purposes, I explained, "The U.S. Sentencing Commission, however, did not make Amendment 794 retroactive to all cases." Id. at *2 (citing U.S.S.G. § 1B1.10(d)). Specifically, "such an amendment does not apply retroactively in a motion for reduction of a sentence under § 3582." Id. at *3. It does not appear that either the Supreme Court or the Eighth Circuit Court of Appeals has expressly considered the question, but I cannot find any decision of any court to consider it, before or since my decision in Altman, that has held that Amendment 794 is retroactively applicable to a reduction of a sentence under § 3582.
THEREFORE, defendant Gabriel Fuentes-Salgado's pro se June 15, 2018, Motion For Modification Of Sentence Pursuant To U.S.S.G. App. C. Amendment 794 (docket no. 78) is denied.
IT IS SO ORDERED.
DATED this 23rd day of July, 2018.
/s/_________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA