United States v. Acuna-Gonzalez

• Decision Date: 30 July 2018
• Docket Number: No. CR 11-3089 JB,CR 11-3089 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MANUEL ACUNA-GONZALEZ, a/k/a Jose Felix Rosales-Perez, a/k/a Eduardo Mendoza; RAMIRO ROSALES-PEREZ; and APOLONIO ROSALES-VIZCARRA, Defendants.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. MANUEL ACUNA-GONZALEZ, a/k/a Jose Felix Rosales-Perez,a/k/a Eduardo Mendoza; RAMIRO ROSALES-PEREZ;and APOLONIO ROSALES-VIZCARRA, Defendants.

No. CR 11-3089 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

July 30, 2018

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Pro Se Defendant's Motion to Reduce or Modify His Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and the United States Guideline "Retroactive" Amendment 782, filed March 7, 2016 (Doc. 123)("Motion"). The primary issue is whether a retroactively applicable amendment to the United States Sentencing Guidelines that reduces Defendant Manuel Acuna-Gonzalez' base offense level from 32 to 30 means that the Court should reduce Acuna-Gonzalez' sentence. The Court will not reduce Acuna-Gonzalez' sentence, because the sentence that Acuna-Gonzalez originally received -- 108 months imprisonment is at the bottom of Acuna-Gonzalez' amended Guidelines range.

FACTUAL BACKGROUND

On December 13, 2011, a federal grand jury returned an indictment charging Acuna-Gonzalez with "unlawfully, knowingly and intentionally possess[ing] with intent to distribute a controlled substance, 100 grams and more of a mixture and substance containing a detectable amount of heroin." Indictment at 2, filed December 13, 2011 (Doc. 23). Acuna-Gonzalez agreed to plead guilty to that charge. See Plea Agreement ¶ 3, at 2, filed May 22, 2012 (Doc. 43). As part of that agreement, the United States and Acuna-Gonzalez stipulated that Acuna-Gonzalez "was not a leader, organizer, manager or supervisor, pursuant to U.S.S.G. § 3B1.1(a)-(c)." Plea Agreement ¶ 9(b), at 5.

The Court accepted the plea agreement, but it did not accept the United States' and Acuna-Gonzalez' stipulation. See Transcript of Sentencing Proceedings at 12:19-13:22 (held February 21, 2013)(Court)("Tr.").¹ See also Plea Agreement ¶ 10, at 7 ("The Defendant understands that the above stipulations are not binding on the Court and that whether the Court accepts these stipulations is a matter solely within the discretion of the Court after it has reviewed the presentence report."). Instead, the Court applied a two-level aggravating-role enhancement, so Acuna-Gonzalez' Guidelines range was 135 to 168 months. See United States Probation Office Memorandum at 1 (dated November 1, 2016), filed November 1, 2016 (Doc. 125)("Memo"). Without that enhancement, Acuna-Gonzalez' Guidelines range would have been 108 to 135 months. See United States' Motion for Downward Variance and Sentencing Memorandum in Support Thereof at 4, filed February 2, 2013 (Doc. 93)("[W]hen entering into the agreement, the parties contemplated a sentencing range of 108-135 months."). The Court did, however, apply a downward variance "equivalent to two offense levels . . . in part to match the expectations of the parties." Tr. at 13:3-18 (Court). Accordingly, the Court sentenced Acuna-Gonzalez to 108 months imprisonment. See Sentencing Minute Sheet at 1, filed February 21, 2013 (Doc. 98).

After the Court sentenced Acuna-Gonzalez, the United States Sentencing Commission adopted Amendment 782, which altered U.S.S.G. §§ 2D1.1, 2D1.11. See U.S.S.G. Supp. toApp. C at 63, 67 (2016)("Amendment 782"). Amendment 782 reduces Acuna-Gonzalez' base offense level by two. See Amendment 782 at 64. See also Memo at 1. The United States Sentencing Commission made Amendment 782 retroactively applicable. See U.S.S.G. § 1B1.10(d).

PROCEDURAL BACKGROUND

Acuna-Gonzalez moves the Court to reduce his sentence in light of Amendment 782. See Motion at 1.² Acuna-Gonzalez calculates his new Guidelines range as 87 to 108 months and asks the Court to sentence him to 87 months imprisonment. See Motion ¶¶ 10, 12, at 3-4. Acuna-Gonzalez argues that the Court can reduce his sentence under 18 U.S.C. § 3582(c)(2), because the Court sentenced him based on a guidelines range that Amendment 782 now reduces. See Motion ¶¶ 8-10, at 3-4. He also argues that the Court should reduce his sentence, because the factors that 18 U.S.C. § 3553(a) enumerates indicate that a shorter sentence is appropriate. See Motion ¶ 11, at 4.

For purposes of § 3553(a), Defendant further advances the Court that he has already served more than 54 months of the sentenced impose[d] upon him in 2013, and he has maintained employment while incarcerated, and will not be a potential dangerous to society upon release, because he will be deported to his country of origin and is determined not to attempt to return to this country again. Lastly, that even with the reduction of sentence the court may grant herein, he still will serve an approximate [term] of 22 month[s] imprisonment, that with the 54 months he has already served, sound as an adequate deterrent and punishment for the crime he committed and accepted responsibility for.

Motion ¶ 11, at 4.

The United States Probation Office ("USPO") filed the Memo to address Acuna-Gonzalez' arguments. See Memo at 1. According to the USPO, the Court's original downward variance means that Acuna-Gonzalez' current sentence -- 108 months -- is equal to the bottom of his amended Guidelines range of 108 to 135 months. See Memo at 1. It follows, again according to the USPO, that Acuna-Gonzalez is not eligible for a sentence reduction. See Memo at 1.

The United States responds to the Motion. See United States' Reply to USPO Memorandum and Response to Motion for Reduced Sentence, filed January 22, 2018 (Doc. 126)("Response"). In the Response, the United States "adopts the reasoning and conclusion of the United States Probation Office memorandum dated November 1, 2016." Response at 1. The United States contends that "[a] defendant is not eligible for a sentencing reduction if he earlier received a sentence that was at or below the bottom of the newly-amended guideline range, other than due to substantial assistance, which does not apply in this case." Response at 2 (citing United States v. Boyd, 721 F.3d 1259, 1264 (10th Cir. 2013)(Hartz, J.)).

LAW REGARDING THE UNITED STATES SENTENCING GUIDELINES.

Courts applying the Guidelines must proceed by: (i) carefully calculating the correct Guidelines range; (ii) making Guidelines-contemplated departures under parts 5H and 5K; and (iii) varying from the resulting Guidelines range based on the factors listed at § 3553(a). Each of these steps involves complex rules that must be applied with precision. For clarity, the Court sets out those rules below.

1. Background Law on the Guidelines.

In United States v. Booker, 543 U.S. 220 (2005)(Stevens, J.), the Supreme Court of the United States of America severed the mandatory provisions from the Sentencing Reform Act of1984, Pub. L. No. 98-473, 98 Stat. 1837, thus making the Guidelines sentencing ranges effectively advisory. See 543 U.S. at 245. In excising the two sections, the Supreme Court left the remainder of the Act intact, including 18 U.S.C. § 3553: "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." 543 U.S. at 261.

Congress has directed sentencing courts to impose a sentence "sufficient, but not greater than necessary" to comply with four statutorily defined purposes enumerated in 18 U.S.C. § 3553(a)(2):

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .

18 U.S.C. § 3553(a)(2)(A)-(D). Section 3551 provides that

a defendant who has been found guilty of an offense described in any Federal statute . . . shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

18 U.S.C. § 3551.

To achieve these purposes, 18 U.S.C. § 3553(a) directs sentencing courts to consider: (i) the Guidelines; (ii) the offense's nature and the defendant's character; (iii) the available sentences; (iv) the policy favoring sentencing uniformity for defendants who commit similar crimes; and (v) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

Although the Guidelines ranges are no longer mandatory, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have clarified that the Guidelines are one of several factors enumerated in 18 U.S.C. § 3553(a) and that they are entitled to considerable deference. See Rita v. United States, 551 U.S. 338, 349 (2007)(Breyer, J.)("The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill [its] statutory mandate."); United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006)(Tymkovich, J.)(describing the Guidelines as "not just one factor among many"), overruled on other grounds by Gall v. United States, 552 U.S. 38 (2007)(Stevens, J.), as recognized in United States v. White, 265 F. App'x 719, 728 n.8 (10th Cir. 2008)(Anderson, J.).³ They are significant, because "the Guidelines are an expression of popular political will about sentencing that is entitled to due consideration . . . [and] represent at this point eighteen years'worth of careful consideration of the proper sentence for federal offenses." United States v. Cage, 451 F.3d at 593 (internal quotation marks omitted). A reasonable sentence is one that also "avoid[s] unwarranted sentence disparities among defendants with similar records who have been found guilty...