United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
the court is Gilberto Lopez-Monjaraz's motion to reduce
sentence. ECF No. 104. The United States of America has filed
a response. ECF No. 106.
November 3, 2009, Lopez-Monjaraz pled guilty to Count 2 of
the indictment, possessing with intent to distribute 500
grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(viii). ECF Nos. 1, 14.
Lopez-Monjaraz was subsequently sentenced to 188 months
incarceration. ECF No. 20. Lopez-Monjaraz has since filed
multiple unsuccessful challenges to his
sentence. On March 4, 2019, Lopez-Monjaraz filed a
pro se Motion to Reduce Sentence. ECF No. 104. On March 11,
2019, the United States filed a Response. ECF No. 106.
argues that his sentence should be reduced pursuant to 18
U.S.C. § 3582(c)(2) based upon Amendment 782 to the
United States Sentencing Guidelines § 1B1.10 which
reduced the base offense level in the drug quantity tables in
§ 2D1.1 and 2D1.11. He further argues that during his
incarceration he has been actively attempting to rehabilitate
himself by taking educational courses and working as an
orderly. While the court appreciates his work toward
rehabilitation, the court cannot grant his motion.
district judge typically may not modify the term of
imprisonment once it has been imposed. See 18 U.S.C.
§ 3582(c); However, pursuant to 18 U.S.C. §
3582(c)(2), the court may reduce the term of imprisonment
when the applicable sentencing range has been lowered by the
Sentencing Commission. If the retroactive amendment
“does not have the effect of lowering the applicable
guideline range, ” the court is not authorized to
reduce a defendant's prison sentence. U.S. Sentencing
Guidelines Manual § 1B1.10(a)(2)(B) (U.S. Sentencing
Comm'n 2018); see Dillon v. United States, 560
U.S. 817, 821-22 (2010) (The provisions and limitations in
these guidelines are binding on the court).
while the amendment applies retroactively to defendants, like
Lopez-Monjaraz, that were sentenced prior to November 1,
2014, Lopez-Monjaraz's offense involved more than 5
kilograms of actual methamphetamine. Therefore Amendment 782
does not lower the applicable guideline range and the court
is not authorized to reduce the defendant's sentence.
because Lopez-Monjaraz's request to reduce his sentence
is, in effect, a successive habeas motion because it comes
subsequent to Lopez-Monjaraz's § 2255 motions filed
in November 2012 (ECF No. 45) and March 2014 (ECF No. 64),
the court must determine whether to grant him a certificate
of appealability. See 28 U.S.C. §
2253(c)(1)(B). However, Lopez-Monjaraz has failed to make
“a substantial showing of the denial of a
constitutional right.” Id. The court further
finds that Lopez-Monjaraz has failed to “demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong”. Allen v. Ornoski, 435 F.3d 946,
950-951 (9th Cir. 2006) (quoting Slack v. McDonald,
529 U.S. 473, 484 (2000). Therefore, the court also denies
Lopez-Monjaraz a certificate of appealability as to his
motion to reduce sentence.
THEREFORE ORDERED that Lopez-Monjaraz's motion to reduce
sentence (ECF No.104) is DENIED.
FURTHER ORDERED that Lopez-Monjaraz is DENIED a certificate