United States v. Gonzalez, CASE NO. 10CR1009–LAB

• Decision Date: 11 August 2015
• Docket Number: CASE NO. 10CR1009–LAB
• Citation: 119 F.Supp.3d 1266
• Parties: United States of America, Plaintiff, v. Humberto Gonzalez, Jr., Defendant.
• Court: U.S. District Court — Southern District of California

119 F.Supp.3d 1266

United States of America, Plaintiff,
v.
Humberto Gonzalez, Jr., Defendant.

CASE NO. 10CR1009–LAB

United States District Court, S.D. California.

Signed August 11, 2015

119 F.Supp.3d 1267

US Attorney CR, US Attorneys Office, Southern District of California, San Diego, CA, for Plaintiff.

Robert R. Henssler, Jr., Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.

ORDER DENYING JOINT MOTION FOR SENTENCING REDUCTION PER USSG AMENDMENT 782 AND 18 U.S.C. § 3582(c)(2)

LARRY ALAN BURNS, United States District Judge

Preliminary Statement

The parties have filed a Joint Application for Sentencing Reduction in this case pursuant to Amendment 782 of the United States Sentencing Guidelines and the provisions of 18 U.S.C. § 3582(c)(2). Amendment 782 lowered the Base Offense Level for most federal drug offenses, including the two offenses of which the defendant, Humberto Gonzalez, was convicted. Another Guidelines Amendment made the reduced sentencing ranges retroactive. See Amendment 788 (amending Guidelines § 1B1.10). Gonzalez stands to benefit from the changes if he is eligible for relief. The parties maintain that he is, but the Court finds he is not.

Eligibility for Reduced Sentence Under 18 U.S.C. § 3582(c)(2)

A court must follow two steps in considering a motion to reduce a sentence under § 3582(c)(2). First, it must determine whether a defendant is eligible for a sentence reduction under the Sentencing Commission's policy statement in USSG § 1B1.10. Second, it must "consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case. United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir.2013).

The United States Sentencing Commission has imposed restrictions on a court's ability to retroactively reduce a sentence, and courts must abide by them. In particular, courts must follow applicable Policy Statements of the Sentencing Commission when giving effect to retroactive changes to the Guidelines. 18 U.S.C. § 3582(c)(2) ; Dillon v. United States, 560 U.S. 817, 821, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ("Any reduction [based on a retroactive change to the Guidelines] must be consistent with applicable policy statements issued by the Sentencing Commission."). Two Policy Statements are pertinent here.

119 F.Supp.3d 1268

First, the Commission has decreed that a court may not reduce a defendant's sentence to a term less than the low end of the amended Guideline range. USSG § 1B1.10(b)(2)(A) ("Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range ..."). Second, and important to this case, the Commission has determined that the amended Guideline range is to be calculated without regard to any departure or variance that the defendant originally received, other than one for Substantial Assistance under § 5K1.1. See USSG § 1B1.10, comment, (n.1 (A)) (new Guideline range is to be determined "before consideration of any departure provision in the Guidelines Manual or any variance"); comment. (n.3) (making clear that a reduction is not authorized under 18 U.S.C. § 3582(c)(2) if the court's original sentence was outside the Guideline range owing to a departure or variance other than for substantial assistance). In other words, a court must back out from the calculation of the amended Guideline sentence range any departure or variance that was given previously, except for a Substantial Assistance departure.¹ See United States v. Davis, 739 F.3d 1222, 1225–26 (9th Cir.2014) (interpreting application of § 1B1.10 to revised crack cocaine Guideline); United States v. Pleasant, 704 F.3d 808, 812 (9th Cir.2013) (amended Guideline range "is derived pre-departure and pre-variance"); United States v. Mungia–Diaz, 606 Fed.Appx. 385, 386 (9th Cir.2015) (applying § 1B1.10 to Amendment 782); United States v. Gutierrez–Zuniga, 2015 U.S. Dist. LEXIS 97014, at *3, 8, and n. 2 (S.D.Cal. July 24, 2015) (same); United States v. Gonzalez–Rodriguez, 114 F.Supp.3d 1063, 1064–65, 2015 WL 4235363, at *1 and n. 2, 2015 U.S. Dist. LEXIS 88881, at *2–3 and n. 2 (S.D.Cal. July 8, 2015) (same).

The Court originally calculated Gonzalez's Guidelines as follows:
Base Level:	38
Specific Offense Characteristic (§ 2D1.1 (b)(4)):	+2
Acceptance of Responsibility downward adjustment (§ 3E1.1 (a)(b)):	–3
Fast Track departure (§ 5K3.1):	–2
Voluntary Disclosure Departure (§ 5K2.16):	–4

119 F.Supp.3d 1269

His Adjusted Offense Level was 31, and with a Criminal History Category of VI, his advisory Guideline range was 188–235 months. The Court chose not to vary from the Guideline range, but did impose a low end sentence of 188 months. The Court later granted the Government's motion under Fed. R. Crim. P. 35 to reduce the defendant's sentence by 80 months to 108 months. Gonzalez is currently serving that reduced sentence.

Under the amended Guidelines, Gonzalez receives a 2–point reduction from his original Base Offense Level, but that credit is offset because the 2–level Fast Track departure and the 4–level Voluntary Disclosure departure that the Court originally granted no longer count:

Base Level:	36
Specific Offense Characteristic (§ 2D1.1(b)(4)):	+2

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