United States v. Gorbatenko, Case No. 3:10-cr-0396-SI

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Michael H. Simon, United States District Judge
• Citation: 181 F.Supp.3d 842
• Parties: United States of America, v. Aleksander Gorbatenko, Defendant.
• Docket Number: Case No. 3:10-cr-0396-SI
• Decision Date: 02 December 2015

181 F.Supp.3d 842

United States of America,
v.
Aleksander Gorbatenko, Defendant.

Case No. 3:10-cr-0396-SI

United States District Court, D. Oregon.

Signed December 2, 2015
Filed December 3, 2015

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Billy J. Williams, Acting United States Attorney, Jeffrey S. Sweet, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, 405 East 8th Avenue, Suite 2400, Eugene, OR 97401. Of Attorneys for the United States.

Rosalind M. Lee, ROSALIND MANSON LEE, LLC, 245 East 4th Avenue, Eugene, OR 97401. Of Attorneys for Defendant.

OPINION AND ORDER

Michael H. Simon, United States District Judge

Defendant Aleksander Gorbatenko filed a motion under 18 U.S.C. § 3582(c)(2) seeking a two-level reduction of his sentence based on United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") Amendment 782. The United States opposes this motion, arguing that Defendant is ineligible for a sentence reduction under Amendment 782 because Defendant's original sentence is lower than his amended guideline range and thus under the Sentencing Commission's policy statement U.S.S.G. § 1B1.10, Defendant is not eligible for a reduction. Defendant argues that the provisions of this policy statement contradict one another, are contrary to the Sentencing Commission's statutory directive, and violate the United States Constitution. Defendant further argues that under the doctrine of constitutional avoidance, the Court should interpret § 1B1.10 in a manner consistent with Defendant's interpretation. On November 20, 2015, the Court held oral argument on this motion and motions in two other cases asserting similar arguments.¹ For the reasons that follow, Defendant's motions are denied.

STANDARDS

A. Sentence Reduction under 18 U.S.C. § 3582

"A federal court generally ‘may not modify a term of imprisonment once it has been imposed.’ " Dillon v. United States , 560 U.S. 817, 819, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (quoting 18 U.S.C. § 3582(c) ). Congress provided a narrow exception to that rule "in the case of a defendant who has been sentenced to a

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term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2) ; see also Dillon , 560 U.S. at 825, 130 S.Ct. 2683 (noting that " § 3582(c)(2) does not authorize a sentencing or resentencing proceeding" but instead 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") (alteration in original). This authority to modify a previously-imposed prison sentence "represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines." Dillon , 560 U.S. at 828, 130 S.Ct. 2683.

Congress has given the Sentencing Commission a "substantial role ... with respect to sentence-modification proceedings." Id. at 826, 130 S.Ct. 2683. Congress has charged the Sentencing Commission "both with deciding whether to amend the Guidelines, and with determining whether and to what extent an amendment will be retroactive." Id. (citation omitted); see also 28 U.S.C. § 994(u) ("If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced."). Thus, courts are "constrained by the Commission's statements dictating ‘by what amount’ the sentence of a prisoner serving a term of imprisonment affected by the amendment ‘may be reduced.’ " Dillon , 560 U.S. at 826, 130 S.Ct. 2683 (quoting 28 U.S.C. § 994(u) ).

In § 3582(c), Congress specifically required that any sentence modification be "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. §§ 3582(c)(1)(A)(ii), 3582(c)(2) ; see also Dillon , 560 U.S. at 821, 130 S.Ct. 2683 ("Any reduction [pursuant to § 3582(c)(2) ] must be consistent with applicable policy statements issued by the Sentencing Commission."). The policy statement governing sentencing modifications after a retroactive amendment to the Guidelines instructs courts not to reduce a term of imprisonment if the amendment "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. Manual § 1B1.10(a)(2)(B).

In deciding a motion under § 3582(c)(2), a court must follow a two-step process. "At step one, § 3582(c)(2) requires the court to follow the Commission's instructions in § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized." Dillon , 560 U.S. at 827, 130 S.Ct. 2683. This requires determining the amended guideline range, which is the range that would have been applicable to the defendant if the amendment had been in effect at the time of the defendant's original sentencing. Id. ; see also § 1B1.10(b)(1). In making this determination, courts are to substitute only the new amendment "for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." § 1B1.10(b)(1) ; see also Dillon , 560 U.S. at 827. The Sentencing Commission further limited application of a retroactive Guidelines amendment by instructing that a court cannot reduce a sentence "to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection," with the exception of making a reduction that is comparable to what was made at the time of original sentencing as a result of "a government motion to reflect the defendant's substantial assistance to

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authorities ...." § 1B1.10(b)(2) ; see also Dillon , 560 U.S. at 827, 130 S.Ct. 2683 (discussing a previous version § 1B1.10(b)(2) that allowed a court to apply comparable departures and variances as were applied at the original sentencing and noting this instruction was "[c]onsistent with the limited nature of § 3582(c)(2) proceedings"). Step two of the § 3582(c) inquiry is to consider any applicable § 3553(a) factors and determine, in the discretion of the Court, whether any reduction authorized by the Guidelines amendment is warranted in whole or in part. See Dillon , 560 U.S. at 827, 130 S.Ct. 2683 ; 18 U.S.C. § 3582(c)(1)(A).

"This circumscribed inquiry [under § 3582(c)(2) ] is not to be treated as a ‘plenary resentencing proceedings.’ " United States v. Navarro , 800 F.3d 1104, 1110 (9th Cir.2015) (quoting Dillon , 560 U.S. at 826, 130 S.Ct. 2683 ). The appropriate use of sentence-modification under § 3582(c)(2)" ‘is to adjust a sentence in light of a Guidelines amendment,’ so courts may not use such proceedings to ‘reconsider [ ] a sentence based on factors unrelated to a retroactive Guidelines amendment.’ " Id. (quoting United States v. Fox , 631 F.3d 1128, 1132 (9th Cir.2011) ).

B. Equal Protection under the United States Constitution

"When the Commission enacts Guidelines treating one class of offenders differently from another, equal protection generally requires that the classification be ‘rationally related to a legitimate government interest.’ "² Navarro , 800 F.3d at 1113 (quoting United States v. Ruiz – Chairez , 493 F.3d 1089, 1091 (9th Cir.2007) ). If the classification implicates a fundamental right or a suspect classification, the Sentencing Commission's decision would be subject to a higher level of scrutiny. Id. at 1113 n. 7. Defendant argues that because his liberty is at stake, heightened scrutiny is appropriate. This argument, however, is foreclosed by the Ninth Circuit's decision in Navarro , which noted that rational-basis review is generally applied when the Guidelines treat classes of offenders differently and applied rational-basis review in considering constitutional challenges to § 1B1.10. Id. at 1113. The Court is bound by this precedent.

A classification is rationally related to a legitimate government interest "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (emphasis added). Under rational-basis review, the burden is on the party seeking to disprove the rationality of the relationship between the classification and the purpose, and that party must "negative every conceivable basis which might support" the classification "whether or not the basis has a foundation in the record." Heller v. Doe by Doe , 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quotation marks and citations omitted). Thus, courts are to accept generalizations regarding the rational basis, "even when there is an imperfect fit between means and ends" and even if the classification "is not made with mathematical nicety or because in practice

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it results in some inequality." Id. at 321, 113 S.Ct. 2637 (quotation marks and citation omitted).

BACKGROUND

A. History of...