United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is pro se Defendant Jose Luis
Lopez-Buelna's (“Defendant's”) Motion for
a Sentence Reduction under 18 U.S.C. 3582(c). (ECF No. 524).
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 a motion for
sentence reduction under Amendment 782. (ECF No. 521). The
Court denied Defendant's motion on May 19, 2017. (ECF No.
523). Defendant did not appeal the Court's prior Order
denying his motion to reduce his sentence, however, in the
instant Motion, Defendant once again seeks a reduction in
sentence pursuant to Amendment 782. (See Mot. for
Sentence Reduction, ECF No. 524).
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.
a federal district court may modify a sentence pursuant to
statute or Federal Rule of Criminal Procedure 35.
See 18 U.S.C. § 3582(c)(1)(B). Rule 35 permits
the Court to correct a sentence within 14 days of sentencing
due to a mathematical, technical, or other clear error.
See Fed. R. Crim. P. 35(a).
seeks a combined five-level sentence reduction under 18
U.S.C. §3582(c) for a total offense level of 35. (Mot.
for Sentence Reduction, 4:18, 5:1-2, ECF No. 524). First,
Defendant claims he was improperly characterized as an
organizer or leader and thus, the Court erred by applying a
four-level enhancement for Role Adjustment. (Id.
5:12-15, 9:15-20). Consequently, Defendant requests
“either a one or two level reduction in the role
enhancement.” (Id. 14:10-11). Second,
Defendant “contends that Amendment 782 reduced his Base
Offense Level for both the drug and money laundering
offenses” and “[b]ecause this was overlooked by
the Court . . . plain error occurred.” (Id.
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). In the instant Motion, Defendant asserts
that the proper amended total offense level should be 35.
(See Mot. for Sentence Reduction 23:18-23). The
the Court finds that Defendant's claim of error regarding
his Role Adjustment is untimely. Defendant must bring a claim
for correction of sentencing errors within 14 days of
sentencing. See 18 U.S.C. § 3582(c)(1)(B);
see also Fed. R. Crim. P. 35(a). Defendant filed the
instant Motion more than six years after he was sentenced.
Therefore, Defendant's claim of error is time-barred.
to the extent Defendant seeks a sentence reduction under
Amendment 782, this argument has already been addressed by
the Court. The instant Motion is successive because both
Defendant's instant filing and Defendant's prior
motion request a reduction under Amendment 782 of 18 U.S.C.
3582(c). (See Mot. for Sentence Reduction, ECF No.
521); (see also Mot. for Sentence Reduction, ECF No.
524). The Court's previous Order found that under
Rodriguez-Soriano Defendant is not eligible for a
sentence reduction under Amendment 782 because
Defendant's sentence was not “based on” the
guideline range, but rather a downward variance to avoid
sentencing disparities among co-defendants. See United
States v. Rodriguez-Soriano,855 F.3d 1040, 1045 (9th
Cir. 2017) ...