United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's
Motion for Reduction of Sentence or Reconsideration, filed on
March 31, 2017. (Doc. 244.) The Court acknowledges Mr.
Gutierrez's heartfelt, personal appeal for a reduction in
his sentence based on advancing age, health, and family
reasons, and certainly empathizes with those considerations.
Unfortunately, they do not grant me the power to do what the
rules do not allow. Having reviewed the Motion, the record,
and the applicable law, the Court finds the motion is not
well-taken and should be denied.
Court sentenced Mr. Gutierrez to 360 months imprisonment on
August 7, 2006. (Doc. 116 at 2.) Mr. Gutierrez filed a Motion
and Questionnaire for Reduction of Sentence Pursuant to 18
U.S.C. § 3582(c) on October 19, 2015. (Doc. 226.) He
sought a reduced sentence based on Amendment 782 to the
United States Sentencing Guidelines, which “reduced the
base offense levels assigned to drug quantities in U.S.S.G.
§ 2D1.1, effectively lowering the Guidelines minimum
sentences for drug offenses.” United States v.
Kurtz, 819 F.3d 1230, 1234 (10th Cir. 2016) (quotation
and subsequent citations omitted). (See also Doc.
226 at 1.) On June 8, 2016, the Court dismissed Mr.
Gutierrez's Motion for lack of jurisdiction, because his
“sentence was based on his career offender status under
United States Sentencing Guideline § 4B1.1, and not on
United States Sentencing Guideline § 2D1.1.” (Doc.
27, 2016, Mr. Gutierrez filed a Motion to Correct Sentence
Under 28 U.S.C. § 2255, arguing that he improperly
received an enhanced sentence as a career offender under the
reasoning in Johnson v. United States, 135 S.Ct.
2551 (2015). (Doc. 233.) On March 20, 2017, the parties
issued a Joint Statement, agreeing that the Supreme
Court's ruling in Beckles v. United States, 137
S.Ct. 886 (2017), was dispositive of the issues raised in Mr.
Gutierrez's § 2255 motion. (Doc. 241.) Accordingly,
the Court dismissed the § 2255 motion on March 28, 2017.
October 31, 2016, President Barack Obama, through an
executive grant of clemency, commuted Mr. Gutierrez's
sentence to a term of 210 months' imprisonment, making
his projected release date March 3, 2020. (Doc. 238 at 1;
see also Doc. 249 at 2.) Mr. Gutierrez now moves the
Court for a reduction or reconsideration of his sentence,
which the Government construes as a motion brought pursuant
to Amendment 782. (Docs. 244; 249 at 2.)
a ‘motion for [a] sentence reduction is not a direct
appeal or a collateral attack under 28 U.S.C. § 2255,
the viability of [the] motion depends entirely on 18 U.S.C.
§ 3582(c).'” United States v.
Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008) (quoting
United States v. Smartt, 129 F.3d 539, 540 (10th
Cir. 1997) (internal quotation and alteration omitted)).
“Section 3582(c) provides that a ‘court may
not modify a term of imprisonment once it has been
imposed except' in three limited circumstances.”
Smartt, 129 F.3d at 540-41 (quoting 18 U.S.C. §
3582(c); subsequent citation omitted). “First, upon
motion of the Director of the Bureau of Prisons, a court may
reduce the term of imprisonment if it finds special
circumstances exist.” Id. (citing 18 U.S.C.
§ 3582(c)(1)(A)(i), (ii)). “Second, a court may
modify a sentence if such modification is ‘otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.'” Id.
(quoting 18 U.S.C. § 3582(c)(1)(B)). “Finally, a
court may modify a sentence if ‘a sentencing range . .
. has subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o).'” Id.
(quoting 18 U.S.C. § 3582(c)(2)). Because Mr. Gutierrez
did not cite a specific provision in his Motion, the Court
will examine his request under all three of these provisions.
Modification for Special Circumstances
Gutierrez is not eligible for a modification pursuant to
section 3582(c)(1)(A). While Mr. Gutierrez mentions both his
age and certain unresolved medical issues he is experiencing
in prison (Doc. 244 at 1-2), the Court may not modify his
sentence under section 3582(c)(1)(A)(i) or (ii), because the
motion was not made by the Director of the Bureau of Prisons
as required. 18 U.S.C. § 3582(c)(1)(A); see,
e.g., Smartt, 129 F.3d at 541.
Modification Expressly Permitted by Statute or Rule
Gutierrez is not eligible for a modification pursuant to
section 3582(c)(1)(B), which “authorizes a court to
‘modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute or by Rule
35.'” Smartt, 129 F.3d at 541 (quoting 18
U.S.C. §3582(c)(1)(B)). Mr. Gutierrez does not assert
that he meets the requirements for modification under Federal
Rule of Criminal Procedure 35 or any other statute. See
United States v. Blackwell, 81 F.3d 945, 948 (10th Cir.
1996) (quoting Fed. R. Crim. P. 35) (describing the three
instances under which courts can correct or reduce a sentence
pursuant to Rule 35: “to correct an illegal sentence on
remand from a court of appeals”; “to
‘reduce a sentence to reflect a defendant's
subsequent, substantial assistance' ‘on motion of
the Government made within one year after the imposition of
the sentence'”; and “within 7 days after the
imposition of sentence, [to] correct a sentence that was
imposed as a result of arithmetical, technical, or other
Subsequent Lowering of Sentencing Range
Gutierrez does not assert, nor can the Court find, that he is
eligible for a reduction based on any of the factors
enumerated in section 3582(c)(2). The Government asserts that
he sought a reduction based on Amendment 782, as he did in
his original § 3582 motion. (Doc. 249 at 2.) The Court
does not see any language seeking such a reduction, but to
the extent Mr. Gutierrez does seek a reduction pursuant to
Amendment 782, the Court denies the motion for the reasons
stated in its previous Order. (See Doc. 231.)
Moreover, if Mr. Gutierrez is moving to ...