United States v. Olivares

• Docket Number: CR. 10-50118-01-JLV
• Decision Date: 08 November 2021
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. LUIS OLIVARES, Defendant.
• Court: U.S. District Court — District of South Dakota

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UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS OLIVARES, Defendant.

No. CR. 10-50118-01-JLV

United States District Court, D. South Dakota, Western Division

November 8, 2021

ORDER

JEFFREY L. VIKEN UNITED STATES DISTRICT JUDGE

INTRODUCTION

Defendant Luis Olivares, appearing pro se, filed a motion for compassionate release pursuant to the statutory provisions of the First Step Act, ^[1] particularly an amendment to 18 U.S.C. § 3582(c)(1)(A).^[2] (Docket 1398). In a supplemental submission, Mr. Olivares seeks First Step Act relief asserting he should no longer be classified as a career offender under 18 U.S.C. § 851 because his prior drug offense convictions should not be considered a “valid basis for enhancement purposes[.]” (Docket 1403 at p. 1). Counsel was subsequently appointed to represent Mr. Olivares and filed a supplement to the defendant's pro se motion. (Docket 1427). The government opposes Mr.

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Olivares' motions. (Dockets 1402, 1407 & 1430). Mr. Olivares filed a reply brief in support of his motion. (Docket 1436).

For the reasons stated below, Mr. Olivares' motions are granted in part and denied in part.

FACTUAL BACKGROUND

In January 2011, a grand jury charged Mr. Olivares and 15 co-defendants in a multi-count indictment.^[3] (Docket 22). Count I charged Mr. Olivares with conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846. Id. at pp. 1-2. In counts II, III & IV, Mr. Olivares was charged with possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2); and being a fugitive from justice in possession of firearms in violation of 18 U.S.C. §§ 922(g)(2) & 924(a)(2), respectively.^[4] Id. at pp. 2-4. In count V, Mr. Olivares and one co-defendant were charged with possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A).^[5] Id. At pp. 4-5.

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In count IX, Mr. Olivares was charged with distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Id. at pp. 5-6. In count X, Mr. Olivares was charged with distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).^[6] Id. at p. 6.

Thirty-eight days before trial, the government filed an information pursuant to 21 U.S.C. § 851 (“851 Information”). (Docket 1058). The 851 Information alleged Mr. Olivares had two prior felony drug convictions. Id. Those alleged convictions were identified as:

(1) A judgment of conviction entered in District Court, Adams County, Colorado, on or about December 3, 2003, for a controlled substance conspiracy, Case No. 2003CR002076 Id.; see also Docket 1058-1 [“Adams County conviction”]; and

(2) An amended judgment of conviction entered in District Court, Arapahoe County, Colorado, on or about April 19, 2006 for possession of more than one gram of a Schedule II controlled substance, Case No. D0032004CR003021. See Dockets 1058 & 1058-2 [“Arapahoe County conviction”]

During the pretrial conference, the court found the government timely provided notice of its intent to seek an enhanced punishment pursuant to 21 U.S.C. § 851(a). (Docket 1076 ¶ A).

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On December 10, 2014, following an eight-day trial, a jury found Mr. Olivares guilty of the following offenses:

Count 1: Conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846

Count 2: Possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A);

Count 3: Felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2);

Count 4: Fugitive in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(2) & 924(a)(2);

Count 5: Possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846; and

Count 9: Distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) & 846.

(Dockets 22^[7] & 1118).^[8] The court ordered the preparation of a presentence investigation report (“PSR”) in advance of sentencing. (Docket 1124). A PSR was prepared. (Docket 1157).

At the sentencing hearing on May 27, 2015, the court considered the arguments and the parties' submissions on the 851 Information. (Docket 1207 at pp. 9-28).

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The court found both prior drug offense convictions valid.^[9]Id. at pp. 27:19-28:8. At the time of Mr. Olivares's convictions and sentencing, 21 U.S.C. § 841(b)(1)(A) provided “[i]f any person commits a violation under this subparagraph . . . after two or more prior convictions for a felony drug offense^[10] have become final, such person shall be sentenced to a mandatory term of life imprisonment without release[.]”^[11]

At sentencing, the court imposed the following sentences:

Count I	Conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 & 851	Life concurrent to counts 3, 4 & 9
Count 2	Possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)	Five years consecutive to all other counts
Count 3	Felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2)	Ten years concurrent to counts 1 & 5
Count 4	Fugitive in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(2) & 924(a)(2)	Ten years concurrent to counts 1 & 5
Count 5	Possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 & 851	Life concurrent to counts 3, 4 & 9

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Count 9 Distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 & 851 Ten years concurrent to counts 1 & 5

(Docket 1166 at pp. 1-2). Because of the life sentences, the court imposed no term of supervised release. Id. at p. 3.

On June 5, 2015, Mr. Olivares appealed the convictions and judgment to the United States Court of Appeals for the Eighth Circuit. (Docket 1168). On December 9, 2016, the Eighth Circuit affirmed the decision of the district court. (Docket 1297; see also United States v. Olivares, 843 F.3d 752 (8th Cir. 2016)).

ANALYSIS

While Mr. Olivares' submissions assert several collateral arguments involving a number of conspiracy theories and allegations against nearly everyone who had any involvement in his case, there are two concrete arguments which must be addressed. These arguments relate to §§ 401 and 404 of the First Step Act.

The supplements to Mr. Olivares' pro se motion assert that because of the First Step Act, his drug convictions no longer qualify him as a career offender and subject to mandatory life sentences. (Dockets 1403 at p. 1 & 1416 at p. 1). His attorney's supplemental brief more properly addresses the career offender issue and the § 401 changes in enhanced mandatory minimum sentences. (Docket 1427).

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First, defendant challenges the factual basis of his prior Colorado convictions as the controlled substance under C.R.S. § 18-18-405, morpholine, “is not included in the federal definition of controlled substances.” Id. at p. 6. Asserting the Colorado statute is “overbroad, ” Mr. Olivares argues his two prior Colorado convictions “were not qualifying 21 U.S.C. § 841 priors.” Id. at p. 8.

In support of his argument, defendant points to Johnson v. Barr, 967 F.3d 1103 (10th Cir. 2020).^[12] Id. Although brought under the Immigration and Nationality Act, defendant contends the conclusion in Johnson that a Colorado conviction for possession of a Colorado schedule II controlled substance is not a “categorical approach” to the federal controlled substance scheme and should provide for a proper analysis and conclusion in his case. (Docket 1427 at p. 8) (referencing Johnson, 967 F.3d at 1107). Because the Johnson court found the Colorado drug statute was both overly broad and indivisible, Mr. Olivares submits the court held the “state drug conviction ‘cannot qualify as a predicate' under the applicable federal definitions.” Id. at p. 9 (citing Johnson, 967 F.3d at 1107).

Next, Mr. Olivares argues this court already held that “consideration of extraordinary and compelling reasons under 18 U.S.C. Section 3582(c)(1)(A)(i) is not tied to U.S.S.G. Section 1B.1.13 cmt. N. 1(A)-(C)[.]” Id. (citing United States v. Janis, CR. 16-50126, 2020 WL 7213820 at *7 (D.S.D. Dec. 4, 2020).

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For this reason, Mr. Olivares asks the court to look to the 18 U.S.C. § 3553(a) factors and modify his sentence to a total combined term of 15 years. Id. Among the § 3553(a) factors, defendant points to the sentences received by his 15 co-defendants who receives sentences ranging from probation to incarceration of up to 120 months. Id. at pp. 9-10.

Mr. Olivares' final argument is that the First Step Act reduced the mandatory life sentence to 25 years for a defendant with two or more prior serious drug felony convictions and reduced the 20-year mandatory sentence to 15 years for a defendant with one serious drug felony conviction. Id. at p. 12. For the same reason he is seeking a 15-year sentence in his first argument, Mr. Olivares submits because he has only one prior serious drug felony, 15 years is the mandatory minimum required under the First Step Act. Id. He asserts these changes in the “statutory framework can, in and of themselves, constitute ‘extraordinary and compelling reasons' in the . . . context” of the First Step Act. Id. at 13 (referencing United States v. Cooper, 996 F.3d 283, 289 (5th Cir. 2021) (“We leave for the district court to consider, in the first instance, whether the nonretroactive sentencing changes to his § 924(c) convictions, either alone or in conjunction with any other applicable considerations, constitute...