Opinion
CASE NO: 2:11-cr-120-FtM-29CM
06-09-2015
UNITED STATES OF AMERICA v. GUSTAVO ADOLPHO LEON
OPINION AND ORDER
This matter comes before the Court on the Motion by the United States for Reduction in Sentence Pursuant to Fed. R. Crim. P. 35(b) (Doc. #328) filed on April 8, 2015. Defendant filed a Response/Objections (Doc. #329). The Court held a hearing on June 3, 2015, with defendant present, and heard argument from counsel and testimony from two witnesses.
Defendant Gustavo Adolpho Leon objects not to the motion, but to the amount of the reduction recommended by the government and to the starting point for the reduction. The government recommends a four level departure, with a starting level of 43. The former Assistant U.S. Attorney handling the case would have sought permission to request an eight level departure. Defendant sought a 33-1/3% reduction in his response, and an 80% reduction at the hearing.
The Court is not bound by the government's recommended reduction, but has the authority to grant a reasonable reduction based upon its evaluation of factors related to defendant's assistance. United States v. Livesay, 525 F.3d 1081, 1091-92 (11th Cir. 2008) ("It remains true that after the government has made a motion for downward departure pursuant to U.S.S.G. § 5K1.1, the government has no control over whether and to what extent the district court will depart from the Guidelines. [ ] The district court's downward departure need only be reasonable." (internal citations omitted)). In determining the extent of a § 5K1.1 departure, "the district court must consider the five non-exclusive § 5K1.1 factors, which are: (1) the usefulness of the defendant's assistance; (2) the truthfulness and completeness of the defendant's information and testimony; (3) the nature and extent of the defendant's assistance; (4) any injury suffered or risk of injury or danger to the defendant and his family as a result of his assistance; and (5) the timeliness of the assistance." Livesay, 525 F.3d at 1092. Other factors may be considered only if they relate to the assistance provided by defendant. Id. The same legal principles apply to a Rule 35(b) motion.
The Court finds that defendant's assistance does qualify as substantial assistance under Fed. R. Crim. P. 35(b) and 18 U.S.C. § 3553(e), and therefore defendant qualifies for a reduction in sentence. The Court heard testimony from the case agent and former AUSA who handled the case, who summarized defendant's cooperation locally, and reviewed a letter concerning defendant's cooperation in Arkansas. After full consideration of the competing arguments, the Court will start at level 42 to account for the Booker variance and will grant a six level reduction based upon this cooperation. This results in a Total Offense Level of 36, a Criminal History Category of III, and a range of imprisonment of 235 to 293 months.
The Court finds that a sentence of 235 months imprisonment is sufficient, but not greater than necessary, to comply with the purposes of sentencing as set forth in 18 U.S.C. § 3553(a) after considering defendant's substantial assistance and reason for variance in addition to the previously considered advisory recommendation of the Sentencing Guidelines and all the factors identified at 18 U.S.C. § 3553(a)(1)-(7). All other components of the original sentence shall remain as originally imposed.
Accordingly, it is hereby
ORDERED:
1. The Government's Motion by the United States for Reduction in Sentence Pursuant to Fed. R. Crim. P. 35(b) (Doc. #465) is GRANTED as set forth above.
2. The Clerk of the Court shall enter an amended judgment reducing the sentence imposed to 235 months imprisonment as to the above-named defendant, and otherwise leaving all
other components of the sentence as imposed in the previously entered judgment.
DONE and ORDERED at Fort Myers, Florida, this 9th day of June, 2015.
/s/_________
JOHN E. STEELE
SENIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record
U.S. Probation
U.S. Marshal
DCCD
Southeast Regional Office
Federal Bureau of Prisons
3800 Camp Creek Parkway, Bldg. 2000
Atlanta, GA 30331