United States District Court, D. Nevada
before the court is defendant Michael Paul Matulich's
motion to reduce sentence pursuant to 18 U.S.C. §
3582(c)(2). (ECF No. 166). The government responded (ECF No.
169) and defendant replied (ECF No. 170).
was charged with and pleaded guilty to conspiracy to
distribute a controlled substance in violation of 21 U.S.C.
§ 846 and conspiracy to unlawfully deal in firearms in
violation of 18 U.S.C. § 922(a)(1). (ECF No. 166 at 2).
On December 10, 2012, the court sentenced Matulich to a total
of 168 months (168 months for the controlled substance
offense and 60 months for the firearms offense, concurrently)
with five years of supervised release to follow.
U.S. Probation Office applied the 2011 edition of the United
States Sentencing Guidelines when preparing the presentence
investigation report, which the court adopted without
changes. (Id.). “The pertinent calculation,
which is for [the controlled substance offense], applied a
base offense level of 36 controlled by U.S.S.G. §
2D1.1(a)(5) and (c)(2) for a quantity of 936 grams of actual
methamphetamine.” (Id.). Pursuant to U.S.S.G.
§ 3D1.4, a two-level enhancement was applied for
multiple counts, resulting in an offense level of 38.
(Id.). The total offense level was 32 after the
court assessed a three-level reduction for acceptance of
responsibility and a three-level reduction for a group plea.
(Id.). Matulich's criminal history category was
gave Matulich a 2011-guideline range of 168 to 210 months.
(Id.). The court imposed a low-end sentence of 168
months, with five years of supervised release to follow.
United States Sentencing Commission promulgated U.S.S.G.
Amendment 782 on November 12, 2014, which reduced all
drug-offense levels by two. (Id.). Further, the
Sentencing Commission included amendment 782 in §
1B1.10(d)'s list of retroactive amendments. See
U.S.S.G. § 1B1.10(d).
3, 2017, defendant filed the instant motion to reduce his
sentence to the low end of the new guideline range, 135 to
168 months. (See ECF No. 166). Initially, the
parties stipulated to stay the motion for two years pending
an updated disciplinary report from the U.S. Probation
Office. (Id. at 3); (see also ECF No. 169).
Now, the government and probation recommend against any
sentence reduction for Matulich. (ECF No. 169).
“[t]he court may not modify a term of imprisonment once
it has been imposed.” 18 U.S.C. § 3582(c). An
exception is “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 pursuant to 28 U.S.C. 994(o).” Id.
decision to reduce a defendant's sentence under this
exception is a two-pronged inquiry. Dillon v. United
States, 560 U.S. 817 (2010). First, the court must
determine whether the defendant, by statute, is eligible for
a reduction of his sentence. 18 U.S.C. §
3582(c). This step “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.
the statute “does not authorize a sentencing or
resentencing proceeding.” Id. at 825. Instead,
the motion is limited to whether the defendant is entitled to
a reduction of his sentence “in circumstances specified
by the Commission.” Id. Moreover, “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 . . . .” U.S.S.G. §
the court must “consider the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c). Further, the court must determine
whether “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.”
Dillon, 560 U.S. at 827. The decision in this prong
of the analysis is ultimately subject to the court's
discretion. See United States v. Lightfoot, 626 F.3d
1092, 1094 (9th Cir. 2010); United States v. Dunn,
728 F.3d 1151, 1153 (9th Cir. 2013).
parties agree that the first prong of the sentence reduction
inquiry is satisfied. (See ECF Nos. 166, 169). Under
the discretionary second prong of the test, the court needs