United States v. Espinoza

• Decision Date: 20 February 2015
• Docket Number: Case No. 8:06–CR–389–T–27MAP.
• Citation: 92 F.Supp.3d 1210
• Parties: UNITED STATES of America v. Taurino ESPINOZA.
• Court: U.S. District Court — Middle District of Florida

92 F.Supp.3d 1210

UNITED STATES of America

v.Taurino ESPINOZA.

Case No. 8:06–CR–389–T–27MAP.

United States District Court, M.D. Florida, Tampa Division.

Signed Feb. 20, 2015.

Christopher P. Tuite, U.S. Attorney's Office, Tampa, FL, for Plaintiff.

ORDER

JAMES D. WHITTEMORE, District Judge.

In April 2014, the United States Sentencing Commission (“Commission”) promulgated and submitted to Congress Amendment 782 to the United States Sentencing Guidelines, which reduced the sentencing guidelines for most federal drug trafficking offenders. Specifically, Amendment 782 reduced by two levels the offense levels in USSG § 2D1.1(c)'s Drug Quantity Table. In July 2014, the Commission promulgated Amendment 788 and amended USSG § 1B1.10, which made Amendment 782 retroactive (effective November 1, 2014) but delayed until November 1, 2015 the effective date for orders reducing prison terms based on Amendment 782. See United States v. Peak, 579 Fed.Appx. 888, 891 n. 1 (11th Cir.2014).

Before the Court is Defendant's Motion for Sentence Reduction Under Amendment 782 (Dkt. 55) and the Government's response (Dkt. 58). In his motion, Defendant seeks a sentence reduction based on Amendment 782. Additionally, Defendant seeks release from custody prior to November 1, 2015, the delayed release date selected by the Commission in its policy statement, USSG § 1B1.10(e). While the Government agrees that Defendant is eligible for the two level reduction under Amendment 782, and does not oppose a reduced sentence of 120 months or time served, whichever is longer, it opposes Defendant's request to be released before November 1, 2015. (Dkt. 58, p. 2).

Defendant was sentenced before the effective date of Amendment 782. The retroactive application of Amendment 782 therefore reduces his sentencing guidelines range by two levels. Where, as here, a defendant's original sentence was based on a sentencing range which has subsequently been lowered by a retroactive guidelines amendment, the defendant's sentence may be reduced “if such a reduction is consistent with applicable policy statements issued by the United States Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Accordingly, Defendant is eligible for a sentence reduction under Amendment 782 and his motion will be granted to that extent, effective November 1, 2015 pursuant to USSG § 1131.10(e). The motion is DENIED to the extent Defendant seeks release from custody prior to November 1, 2015.

Procedural history and Amendment 782 offense level reduction

Defendant pleaded guilty, pursuant to a Plea Agreement, to conspiracy to possess with the intent to distribute 500 grams or more of methamphetamine (Count One) in violation of 21 U.S.C. § 846 (Dkts. 25, 27). He was sentenced to 135 months in prison, followed by 5 years of supervised release (Dkt. 36). His conviction was affirmed on appeal (Dkt. 48).

Defendant's original sentencing guidelines range was 135 to 168 months, based on a Total Offense Level 31 and Criminal History Category III (Dkts. 33, 52). As a result of Amendment 782, his offense level is reduced by two levels, resulting in an amended guidelines range of 120 to 135 months, based on a Total Offense Level 29, Criminal History Category III (Dkt. 52).¹

The November 1, 2015 delayed release date

In conjunction with Amendments 782 and 788, the Commission amended USSG § 1B1.10, effectively delaying the release of inmates eligible for Amendment 782 sentence reductions until November 1, 2015, at the earliest (USSG § 1B1.10(e) ) (“The court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court's order is November 1, 2015”). This policy statement is binding on the courts. United States v. Melvin, 556 F.3d 1190 (11th Cir.), cert. denied, 556 U.S. 1239, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009) (courts are bound by applicable policy statements promulgated by the Commission in § 3582(c)(2) sentence reduction proceedings); Dillon v. United States, 560 U.S. 817, 830, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (same).

The Sentencing Reform Act grants to the Commission the authority to issue binding policy statements concerning the retroactive application of a guidelines amendment. 28 U.S.C. §§ 994(u), 994(a)(2)(C) ; Dillon v. United States, 560 U.S. at 830, 130 S.Ct. 2683. Congress directed the Commission to “specify what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u) ; United States v. Colon, 707 F.3d 1255, 1259 (11th Cir.2013) (“Section 994(a) provides that the Commission must promulgate general policy statements that address ‘the appropriate use of ... the sentence modification provisions set forth in section[ ] ... 3582(c) of title 18.’ ”).² Further, Congress has directed that a court order reducing a defendant's sentence in this circumstance be consistent with those policy statements. 18 U.S.C. § 3582(c)(2) (“... court may reduce the term of imprisonment ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”). See USSG § 1B1.10(a)(1) (“As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.”).

It follows that the Commission was authorized by statute to promulgate the policy statement in USSG § 1B1.10(e), which specifies the circumstances by which Amendment 782 sentence reductions are to be implemented, including the November 1, 2015 delayed release date. Dillon v. United States, 560 U.S. at 825, 130 S.Ct. 2683 (“By its terms, § 3582(c)(2)... provides for the ‘modif [ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.” ) (emphasis added).

All of this means, of course, that Defendant may not be released until November 1, 2015, at the earliest. Indeed, the Commission's commentary anticipated Defendant's argument to the contrary:

A reduction based on retroactive application of Amendment 782 that does not comply with the requirement that the order take effect on November 1, 2015, or later is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2).”

USSG § 1B1.10, comment., n. 6 (2014).

Discussion

Defendant challenges the November 1, 2015 delayed release date on several grounds. First, pointing to the Commission's reasons for promulgating the delayed release date (among other reasons, to provide offenders with the opportunity to participate in reentry programs and transitional services, such as halfway houses), he contends that it would be contrary to the statutory prohibition against considering correction and rehabilitation in 18 U.S.C. § 3582(a) for the court to enforce § 1B1.10(e). He argues that “when modifying a sentence pursuant to § 3582(c)(2), it is ‘not appropriate’ for the Court to use imprisonment to promote ‘correction and rehabilitation,’ ” citing § 3582(a). This contention is foreclosed by the plain language of that statute.

The statutory prohibition against considering correction and rehabilitation applies to the imposition of a term of imprisonment, not a reduction in sentence:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

18 U.S.C. § 3582(a).³

On the other hand, section 3582(c)(2) expressly applies to “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o ).” A distinction must therefore be drawn between the imposition of a sentence, in which correction and rehabilitation may not be considered, and a reduction of that sentence under § 3582(c)(2) based on a retroactive guidelines amendment.⁴ In that circumstance, policy statements such as § 1B1.10(e) must be followed by the court, notwithstanding that correction and rehabilitation may have been motivating factors in the Commission's determination to delay the release of eligible offenders.

Defendant's reliance on Tapia v. United States, supra, is misplaced. Nothing in Tapia prohibits the consideration of corrections and rehabilitation in a § 3582(c)(2) sentence reduction proceeding. See United States v. Johnson, 550 Fed.Appx. 844 (11th Cir.2013) (Tapia's prohibition against “sentencing based on rehabilitation extends only insofar as a court may choose to lengthen a sentence for the purpose of promoting a defendant's rehabilitation,” and public safety concerns are permissible considerations in a § 3582(c)(2) proceeding).

I conclude, therefore, that enforcement of the November 1, 2015 delayed release provision in USSG § 1B1.10(e) is not prohibited by § 3582(a), since that section applies to the imposition of sentence, not a reduction or modification of a sentence.

Commission's Statutory Authority

Defendant's next contention fails for essentially the same reason as his first. He contends that the Commission exceeded its statutory authority in promulgating USSG § 1B1.10(e) because 28 U.S.C. § 994(k) prohibits the Commission from considering correction and rehabilitation when promulgating guidelines. See Dkt. 55, p. 7 (The “Sentencing Commission is a creature of statute and, accordingly, its powers are limited by the statute that creates it.”) (citing United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) ). Specifically, Defendant contends that the Commission delayed the release date of offenders eligible for Amendment 782 sentence reductions “to provide them with correctional treatment or rehabilitation services,” in violation of the prohibition against considering correction...