Opinion
CRIMINAL ACTION 08-20160-08-KHV
05-05-2023
UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO PEREA, Defendant.
MEMORANDUM AND ORDER AND ORDER TO SHOW CASE
KATHRYN H. VRATIL, United States District Judge
On April 20, 2010, the Court sentenced defendant to 292 months in prison. This matter is before the Court on defendant's pro se Motion For Compassionate Release Under First Step Act, 2018 (Doc. #549) filed April 3, 2023 and his pro se Motion To Stay Proceedings (Doc. #551) filed April 25, 2023. The Office of the Federal Public Defender has declined to enter an appearance.
Defendant seeks a stay of proceedings until the United States Sentencing Commission amends U.S.S.G. § 1B1.13, which is the policy statement that applies to motions for compassionate release. On April 27, 2023, the Sentencing Commission submitted to Congress a proposed amended policy statement, which would also apply to defense motions. Absent congressional action to the contrary, the proposed amendment will go into effect on November 1, 2023. Under current law, however, when evaluating defense motions for compassionate release, the Court is not bound by the Sentencing Commission's policy statement. See United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021); see also United States v. Warren, No. 11-20040-01-WPJ, 2021 WL 1575226, at *2 (D. Kan. Apr. 22, 2021) (requirement to determine if reduced sentence is consistent with Sentencing Commission's policy statement does not apply until it is amended to apply to defense motions). In addition, even if the Court were to deny defendant relief under current law, he could request relief again under the amended policy statement. The Court therefore overrules defendant's motion to stay.
See Federal Register Notice of Amendment Submission, Issue for Comment, available at https://www.ussc.gov/policymaking/federal-register-notices/federal-register-notice-submission-2023-amendments-congress (last visited May 1, 2023).
On May 5, 2023, the Court reduced the sentence of co-defendant Juan Mata-Soto from life to 240 months. The Court has reviewed defendant's Motion For Compassionate Release Under First Step Act, 2018 (Doc. #549) and his Presentence Investigation Report (Doc. #288) filed March 9, 2010. On or before June 2, 2023, the government shall show good cause in writing why the Court should not sustain defendant's motion under 18 U.S.C. § 3582(c)(1)(A) and reduce his sentence. On or before June 30, 2023, defendant may file a reply to the government's response.
IT IS THEREFORE ORDERED that defendant's pro se Motion To Stay Proceedings (Doc. #551) filed April 25, 2023 is OVERRULED.
The Clerk is directed to forward a copy of this order to the Office of the Federal Public Defender.