United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is pro se Defendant Jose Luis
Lopez-Buelna's (“Defendant's”) Motion for
a Sentence Reduction under Amendment 782 of 18 U.S.C.
3582(c). (ECF No. 521).
October 13, 2009, a grand jury sitting in the District of
Nevada returned a Second Superseding Indictment charging
Defendant with eight counts relating to a conspiracy
involving drugs, money laundering, and kidnapping. (ECF No.
61). On February 16, 2011, after thirteen days of a jury
trial on the case, Defendant decided to plead guilty to four
counts of the Second Superseding Indictment, including Count
One, Conspiracy to Distribute a Controlled Substance, 21
U.S.C. §§ 841(a)(1), 846; Count Two, Conspiracy to
Launder Money, 18 U.S.C. § 1956(h); and Counts Three and
Four, Money Laundering-Promotion 18 U.S.C. §§
1956(a)(1)(A)(i) and 2. (ECF No. 299). On December 20, 2011,
the Court held a sentencing hearing and imposed a sentence of
240 months. (ECF No. 433).
October 19, 2015, Defendant sent a letter to the Court asking
for appointment of counsel to seek a sentencing reduction
under Amendment 782 (ECF No. 514), which the Court granted,
appointing the Federal Public Defender (“FPD”)
(ECF No. 515). On February 5, 2016, the FPD filed a Motion to
Withdraw indicating that after reviewing Defendant's
file, “counsel will not file any motions or
applications for reduction of sentence on the defendant's
behalf.” (Mot. to Withdraw 2:8-9, ECF No. 519). The
Court granted the FPD's motion on February 16, 2016. (ECF
No. 520). On December 19, 2016, Defendant filed the instant
Motion for Sentence Reduction under Amendment 782. (ECF No.
federal court generally ‘may not modify a term of
imprisonment once it has been imposed.'” Dillon
v. United States, 560 U.S. 817, 819 (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 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 (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.
seeks a two-level reduction under Amendment 782 of §
3582(c). (Def. Mot. Sentence Reduction, ECF No. 521).
Defendant's original base offense level was 38; however,
his total offense level was 42, after a 6-level increase for
Specific Offense Characteristic and Role Adjustment, and a
2-level reduction for Acceptance of Responsibility. Under the
amended Sentencing Guidelines, Defendant's amended base
offense level would be 36, plus 6 levels for the Specific
Offense Characteristic and Role Adjustment, minus 2 levels
for Acceptance of Responsibility, equaling a total amended
offense level of 40. Defendant had a criminal history score
of 3, which put him in criminal history category II.
was originally sentenced to 240 months in custody, per count,
concurrent to each other, pursuant to a downward variance.
(See Sentencing Tr. 68:2-5, 69:17-19). The downward
variance placed Defendant at a total offense level of 36.
(Id. 69:17-19). The Court varied downward to avoid
unwarranted sentencing disparities among defendants. (See
Id. 59:10-11). Defendant asserts that because he was
sentenced at an offense level of 36, his proper amended
offense level should be 34. (See Def. Mot. Sentence
Reduction 5:12-22). The Court disagrees.
the Ninth Circuit's most recent guidance, for a defendant
to be eligible for a sentence reduction, a court must first
find that the sentence was “based on” a guideline
range. United States v. Rodriguez-Soriano, No.
15-30039, 2017 WL 1591135, at *2 (9th Cir. May 2, 2017). In
Rodriguez-Soriano, the Ninth Circuit reviewed the
sentencing hearing transcript and determined that the
district court's sentence was pursuant to a Government
motion for downward departure, not based on the guideline
range; therefore, the defendant was not eligible for a
sentencing reduction under Amendment 782. Id. at *4.
The Ninth Circuit has also previously stated that the
applicable guideline range is derived pre-departure and
pre-variance. United States v. Pleasant, 704 F.3d
808, 812 (9th Cir. 2013), overruled on other grounds by
United States v. Davis, 825 F.3d 1014, 1022 n.8 (9th
Cir. 2016). While the Ninth Circuit has not specifically
determined whether departures and variances should be
included in the “amended guideline range” for
purposes of Section 3583 sentencing reductions like Amendment
782, another district court in the Ninth Circuit persuasively
found that they should not. See United States v.
Guzman, 176 F.Supp.3d 1012, 1024 (D. Or. 2015)
(“the Ninth Circuit's conclusion that departures
and variances are not included in the ‘applicable
guideline range' forecloses the argument that they are
‘guideline application decisions' or that they
should be included in the ‘amended guideline
the Court finds that, like in Rodriguez-Soriano,
Defendant's sentence was not “based on” the
guideline range, but rather a downward variance to avoid
sentencing disparities among co-defendants. (See
Sentencing Tr. 59:10-11, 69:17-19). Therefore, under
Rodriguez-Soriano, Defendant is not eligible for a
sentence reduction under Amendment 782. Nevertheless, even if
the sentence was based on a guideline range, Defendant's
amended offense level would be 40, not 34, because the
amended guideline range would not include the downward
variance from the original sentencing. See Pleasant,
704 F.3d at 812; Guzman, 176 F.Supp.3d at 1024. At
an amended offense level of 40 and a criminal history
category II, the Defendant's amended guideline range
would be 324-405 months. Pursuant to U.S.S.G. §
1B1.10(b)(2), the Court generally may not reduce a
defendant's term of imprisonment to a period less than
the amended guideline range. U.S.S.G. § 1B
1.10(b)(2)(A). The sole exception to this rule involves cases
in which the defendant originally received a below-guideline
sentence pursuant to a government motion for substantial
assistance, which is not applicable here. U.S.S.G. §
1B1.10(b)(2)(B). As such, Defendant's original sentence
of 240 months in custody is less than the low end of his
amended guideline range. Accordingly, the Court finds that
Defendant is ineligible for any reduction in sentence
pursuant to 18 U.S.C. § 3582(c)(2), Amendment 782, and
pursuant to U.S.S.G. § 1B1.10, effective November 1,
IS HEREBY ORDERED that Defendant's Motion for a