USA v. Noyola-Martinez et al

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
)
ADAN E. BARRAGAN [D-02] )
) No. 3:10-cr-0123-HRH-02
Defendant. )
_______________________________________)
O R D E R
Motion for Reduction of Sentence1
Defendant moves pursuant to 18 U.S.C. § 3582(c)(2) and the First Step Act of
2018 for a sentence reduction. The motion is opposed.2
Defendant pled guilty to a drug conspiracy in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A) and conspiracy to launder proceeds of unlawful distribution of controlled
substances pursuant to 18 U.S.C. § 1956(h).3 Defendant’s guideline range for sentencing
was therefore 235 to 293 months.4 At the time of sentencing, defendant’s total offense
1Docket No. 779.
2Docket No. 780.
3Judgment (Feb. 23, 2012), Docket No. 574.
4Statement of Reasons (Sealed) at 1, Docket No. 575.
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level was 38.5 Defendant’s criminal history category was I.6 Because of the large amount
of drugs involved,7 the defendant was subject to a mandatory minimum term of
imprisonment of 10 years.8 The court granted defendant a significant variance from the
guidelines. Defendant was sentenced to a term of imprisonment of 132 months.9
U.S.S.G. Amendment 782 effected an across-the-board, two-level reduction of
base offense levels for drugs, including methamphetamine, marijuana, and powder
cocaine. Based upon Amendment 782, effective November 1, 2014, defendant sought
and was granted a reduction of his total offense level from 38 to 36 and a guideline range
from 188 to 235 months.10 However, this did not result in any reduction of defendant’s
term of imprisonment because of the provisions of U.S.S.G. § 1B1.10(b)(2)(A), which
limits sentence reductions granted pursuant to 18 U.S.C. § 3582(c)(2). That policy
statement precludes the court from reducing a defendant’s term of imprisonment to less
than the minimum sentence under amended guideline ranges. Defendant’s sentence of
132 months was less than the new guideline range of 188 to 235 months. Defendant’s
earlier motion for a sentence reduction was denied.
5Id.
6Id.
7Methamphetamine (actual) 5.16 kilograms, an additional 1.1 kilograms of
methamphetamine, 352.6 grams of powder cocaine, and 11.3 kilograms of marijuana, for
a total of the equivalent of 103,284 kilograms of marijuana. Presentence Investigation
Report (Jan. 6, 2012) at 15, ¶ 54, Docket No. 533-1.
8Presentence Investigation Report (Jan. 6, 2012) page 26 of 32, ¶ 102, Docket
No. 533-1.
9Judgment (Feb. 23, 2012) at 3, Docket No. 574.
10Order on Motion to Reduce Sentence (Mar. 15, 2017) at 2, Docket No. 756.
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The court’s reduction of defendant’s guideline range to 188 to 235 months was
based upon the then-popular notion that guideline Amendment 782 effected an overall
two-level reduction in base offense levels. That assumption did not take account of the
fact that base offense level 38 is the top of the base offense levels. Drug quantities
associated with base offense level 38 changed as a result of Amendment 782. The drug
quantities were increased. For example, under the 2011 and 2013 guidelines, base
offense level 38 applied to 1.5 kilograms or more of actual methamphetamine or 30,000
kilograms or more of marijuana. Under the 2014 and subsequent guidelines, base offense
level 38 does not apply until one is responsible for 4.5 kilograms or more of actual
methamphetamine or 90,000 kilograms or more of marijuana. In the 2017 order, the court
overlooked the fact that the drug quantities for which defendant was responsible were so
large that he was subject to base offense level 38 under both the guidelines in place at the
time of his offense as well as under the 2014 and subsequent guidelines. U.S.S.G.
§ 2D1.1(c)(1). Defendant’s convictions involved 103,284 kilograms of equivalent
marijuana, including 5.16 kilograms of actual methamphetamine.11
Accordingly, in 2017, defendant’s base offense level should have remained 38 and
his guideline range 235 to 293 months. Defendant’s sentence of 132 months was less
than the lower end of both the correct guideline range (235 months) or the incorrect
guideline range (188 months). The court’s miscalculation of defendant’s guideline range
in 2017 was harmless. At either guideline range, U.S.S.G. § 1B1.10(b)(2)(A) precluded a
reduction of defendant’s 132-month sentence.
11Methamphetamine (actual), 5.16 kilograms, an additional 1.1 kilograms of
methamphetamine, 352.6 grams of powder cocaine, and 11.3 kilograms of marijuana, for
a total of the equivalent of 103,284 kilograms of marijuana. Presentence Investigation
Report (Jan. 6, 2012) at 15, ¶ 54, Docket No. 533-1.
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The court turns now to the defendant’s contention that he is entitled to a sentence
reduction based upon the First Step Act of 2018. Defendant argues that §§ 401, 402, and
404 of the First Step Act apply retroactively in this case.12
Section 401 of the 2018 Act deals with defendants who were previously convicted
of serious drug felonies and reduces the minimum term of imprisonment for a second
drug offense from not less than 20 years to not less than 15 years. At sentencing,
defendant’s criminal history was I. He had no prior felony drug offense. He was not
subject to an enhanced mandatory minimum sentence which the Act reduced. Moreover,
§ 401(c) of the Act makes it clear that this section applies only “if a sentence for the
offense has not been imposed as of such date of enactment.” Defendant is not awaiting
sentencing in connection with the offenses charged in this case when the Act became
effective.
Defendant also relies upon § 402 of the 2018 First Step Act which broadens the
availability of the “safety valve” by which a defendant who qualifies may avoid a
mandatory minimum sentence and obtain a two-level offense level reduction. U.S.S.G.
§ 2D1.1(b)(17). Prior to the Act, a defendant having more than one criminal history point
was disqualified as regards the safety valve. 18 U.S.C. § 3553(f)(1). Section 402 of the
Act amended § 3553(f)(1), but did not amend § 3553(f)(4) which disqualifies a defendant
who was an “organizer, leader, manager, or supervisor of others in the offense” from use
of the safety valve. Defendant’s total offense level of 38 was based upon a base level 38,
which was adjusted upward three levels because defendant was the supervisor of five
12Motion for Reduction of Sentence at 2, Docket No. 779.
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participants.13 Defendant’s adjusted offense level of 4114 was reduced by three levels for
acceptance of responsibility.15 Thus, at the time of sentencing and now, defendant is
disqualified from the § 3553(f) safety valve provision. But even if that were not so, § 402
of the Act has only prospective application. It applies “only to a conviction entered on or
after the date of this Act.” Section 402(b). Defendant’s conviction was entered many
years prior to the date of enactment of § 402.
Finally, defendant seeks a sentence reduction based upon § 404 of the First Step
Act of 2018. Section 404 of the Act has application to “covered offenses.” A “covered
offense” means a violation of a federal criminal statute that was committed before
August 3, 2010, the statutory penalties for which were modified by Section 2 or 3 of the
Fair Sentencing Act of 2010 (Pub. L. 111-220; 124 Stat. 2372).
Some of defendant’s drug offense of conviction was committed before August 3,
2010.16 Section 2 of the Fair Sentencing Act of 2010 made changes in statutory penalties
for some drug offenses. The Act, amended 21 U.S.C. § 841(b)(1)(A)(iii) by striking the
term “50 grams” and inserting in its place “280 grams”. This modification had the effect
of increasing the threshold for imposition of a 10-year mandatory minimum sentence.
Section 2 of the 2010 Act also amended 21 U.S.C. § 841(b)(1)(B)(iii) by striking the term
“5 grams” and inserting in its place “28 grams”. This modification had the effect of
increasing the threshold for imposition of a 5-year mandatory minimum sentence.
13Presentence Investigation Report (Jan. 6, 2012) at 19 of 32, ¶ 58, Docket
No. 533-1.
14Id., ¶ 59.
15Id. at 21 of 32, ¶ 74.
16First Superseding Indictment at 2, Docket No. 41.
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The foregoing statutory amendments upon which defendant relies in seeking a
sentence reduction amended the applicable mandatory minimum sentences for offenses
involving cocaine base. Defendant’s drug conspiracy conviction involved large amounts
of actual methamphetamine, marijuana, and some powder cocaine.17 The statutory
alteration of the thresholds after which mandatory minimum sentences of 10 and 5 years
have application in cases involving cocaine base have no application in this case. The
statutory penalties for drug conspiracies involving methamphetamine, marijuana, and
powder cocaine were not modified by § 2 of 2010 Act.18
Defendant was found responsible for 5.16 kilograms of actual methamphetamine19
or, after conversion and consolidation of other drug quantities, responsible for the
equivalent of 103,284 kilograms of marijuana. Those drug quantities were and remain
subject to a sentence of not less than 10 years’ imprisonment. Defendant’s current
sentence of 132 months is consistent with the statutory requirement. Defendant’s crimes
are not “covered” by First Step Act of 2018.
Defendant’s motion for reduction of sentence also relies upon 18 U.S.C.
§ 3582(c)(2). Section 3582(c)(2) has application in cases “of a defendant who has been
sentenced to a term of imprisonment based upon a sentencing range that has subsequently
been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).”
Sections 401 and 404 of the First Step Act of 2018 made statutory changes which
do not result in any guideline offense level changes. Section 402 of the Act effects
17Presentence Investigation Report (Jan. 6, 2012) at 18 of 32, ¶ 54, Docket
No. 533-1.
18Section 3 of the Fair Sentencing Act of 2010 eliminates mandatory minium
sentences for simple possession. This case does not involve simple possession.
19Plus an additional 1.1 kilograms of methamphetamine,
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changes in 18 U.S.C. § 3553(f). If those changes made the § 3553 safety valve available
to defendant, his total offense level would change based on U.S.S.G. § 2D1.1(b)(17).
But, as set out above, the amendments to § 3553(f) do not make the safety valve
available to defendant, and defendant’s total offense level is therefore not changed.
There has been no statute amendment or modification of Sentencing Commission
guidelines which would give rise to a base offense level lower than 38. After the
adjustment for role in the offense and after credit for acceptance of responsibility,
defendant’s total offense level remains 38, his criminal history remains I, and his below-
guideline-sentence of 132 months remains appropriate under applicable statutes and
guidelines.
Defendant’s motion for sentence reduction is denied.
DATED at Anchorage, Alaska, this 16th day of April, 2019.
/s/ H. Russel Holland
United States District Judge
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