Opinion
CR. NO. 2:02-246 WBS
05-11-2016
UNITED STATES OF AMERICA, Plaintiff, v. OCTAVIO HERNANDEZ SUAREZ, Defendant.
ORDER
On May 12, 2004, defendant Octavio Hernandez Suarez was convicted by jury verdict of Counts One and Five of the Indictment. (Docket Nos. 118-119.) Count One charged defendant with conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and Count Five charged him with possession with intent to distribute methamphetamine, aiding and abetting, in violation of 21 U.S.C. § 841(a)(1). (Presentence Report ("PSR") ¶ 1.) Because defendant was found to have trafficked at least 50 grams of methamphetamine, (PSR ¶ 25), and previously convicted of a felony drug offense, (PSR ¶¶ 34-35, 60), section § 841(b)(1)(A) mandated a minimum sentence of twenty years' imprisonment for each offense. See 21 U.S.C. § 841(b)(1)(A)(viii) (2002) (amended 2006).
On June 11, 2003, the government filed an information charging defendant with a prior felony drug conviction pursuant to 21 U.S.C. § 851. (Docket No. 57.)
Section 841 was amended in 2006, 2009, and 2010. The current version of the statute does not alter defendant's mandatory minimum sentence. See id. § 841(b)(1)(A)(viii) (2010).
At defendant's sentencing hearing on July 30, 2004, the court adopted the PSR's recommendations and found that defendant's total offense level was 28 and his criminal history category was III. (Docket No. 127; PSR ¶ 60.) Although this would ordinarily result in a guideline range of 97 to 121 months, the court imposed the statutory minimum sentence of 240 months' imprisonment on each of Counts One and Five, to be served concurrently. (Docket No. 131; PSR ¶ 55); see U.S.S.G. § 5G1.1(b) (2003) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.").
Defendant now moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines ("U.S.S.G."). (Mot. (Docket No. 239).) Amendment 782 retroactively modifies the Drug Quantity Table in § 2D1.1 and reduces by two points the base offense level for most federal drug offenses. See U.S.S.G. supp. to app. C, amend. 782 (2014).
Defendant initially filed his motion pro se. (Docket No. 230.) The court subsequently appointed counsel to represent defendant, (Docket No. 233), after which defendant filed this motion amending the one he previously filed pro se.
Section 3582(c)(2) provides that, when a defendant is sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). To grant a motion under 18 U.S.C. § 3582(c)(2), the court must determine that a reduction is consistent with the policy statement promulgated in § 1B1.10. Dillon v. United States, 560 U.S. 817, 826-27 (2010). Section 1B1.10 provides that "a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2)" only if "the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual." U.S.S.G. § 1B1.10(a) (2003).
"The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." U.S.S.G. § 1B1.11(a) (2015). The manual in effect on the date that defendant was sentenced, July 30, 2004, was the 2003 Guidelines Manual. --------
Even if Amendment 782 had been in place at the time defendant was sentenced, his applicable sentencing range would have been the same. As initially calculated, defendant's base offense level was 34 pursuant to the Drug Quantity Table in § 2D1.1(c)(3). (PSR ¶ 25.) Because defendant received a mitigating role adjustment under § 3B1.2, his maximum base offense level was reduced to 30 pursuant to § 2D1.1(a)(3). (PSR ¶ 26); § 2D1.1(a)(3) (2003) (providing that a defendant who receives a mitigating role adjustment under § 3B1.2 shall not have a base offense level of more than 30).
Defendant then received a two-level reduction pursuant to § 3B1.2(b) for his role as a minor participant in the criminal activity. (PSR ¶ 28); § 3B1.3 cmt. n.6 (2003) (providing that, if a defendant's base offense level is "reduced by operation of the maximum base offense level in § 2D1.1(a)(3), the court shall also apply the appropriate [role] adjustment under" § 3B1.1). The court thus found that defendant's total base offense level was 28 and his criminal history category was III.
Defendant acknowledges that his total offense level would not have changed even in light of Amendment 782. (Mot. at 3.) Pursuant to Amendment 782, defendant's base offense level under the Drug Quantity Table would be reduced from 34 to 32. This reduction is immaterial to defendant's guideline calculation. Because the court would still reduce defendant's maximum base offense level to 30 pursuant to § 2D1.1(a)(3) and apply a two-level reduction pursuant to § 3B1(b), defendant's total base offense level would remain at 28, even if Amendment 782 were in place at the time he was sentenced. See United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009) (holding that the defendant's sentence was not "based on a sentencing range that has subsequently been lowered by the Sentencing Commission," as required by § 3582(c)(2) because his base offense level would have been the same even if the guidelines amendment had been in place at the time he was sentenced).
Amendment 782 would also not have affected the imposition of the mandatory minimum sentence here. See U.S.S.G. § 5G1.1(b) (2003) (requiring that the court apply the statutorily required minimum sentence if it is greater than the maximum of the applicable guideline range). "It is axiomatic that a statutory minimum sentence is mandatory" and that "[a] retroactive amendment to the Guidelines cannot reduce a sentence below the statutory minimum term." United States v. Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011); see also United States v. Mullanix, 99 F.3d 323, 324 (9th Cir. 1996) (holding that "the mandatory minimum was not affected by the change in the [drug] equivalency tables" and, thus, "the district court had no authority to reduce [the defendant's] sentence under § 3582(c)(2)").
Defendant's sentence here was based on the mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A)(viii) and § 851(a)(1), and not "on a sentencing range that has subsequently been lowered by the Sentencing Commission" pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Paulk, 569 F.3d 1094, 1095-96 (9th Cir. 2009) (per curiam) ("[Defendant] is not entitled to a reduction because his sentence was not 'based on a sentencing range that has subsequently been lowered by the Sentencing Commission,' 18 U.S.C. § 3582(c)(2), but rather was based on the statutory mandatory minimum under 21 U.S.C. § 841."). Defendant also acknowledges that, even under Amendment 782, he still would have received the mandatory minimum sentence under 21 U.S.C. §§ 841 and 851. (Mot. at 3.) Accordingly, because defendant does not qualify for a sentence reduction under 18 U.S.C. § 3582(c)(2), the court must deny his motion.
IT IS THEREFORE ORDERED that defendant's amended motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), (Docket No. 239), be, and the same hereby is, DENIED. Dated: May 11, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE