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 Reconsideration for Reduction of Sentence Pursuant
to Title 18 U.S.C. §3582(c)(2) & 994(o), filed on
June 23, 2017. (Doc. 281.) The Court acknowledges Mr.
Majalca-Aguilar's hard work in developing his skills and
improving his well-being and encourages him to continue
working toward a successful transition after his term of
incarceration ends. However, having reviewed the Motion, the
record, and the applicable law, the Court finds the Motion is
not well-taken and will be denied.
March 29, 2013, Mr. Majalca-Aguilar pled guilty to Counts 1,
2, 4, and 6-8 of an Indictment charging as follows: Count 1:
21 U.S.C. § 846: Conspiracy to possess with intent to
distribute 50 grams and more of methamphetamine, in violation
of §§ 841(a)(1) and (b)(1)(A); Counts 2, 6, and 8:
21 U.S.C. §§ 841(a)(1) and (b)(1)(A): Distribution
of 50 grams and more of methamphetamine; 18 U.S.C. § 2:
Aiding and Abetting; Count 4: 21 U.S.C. §§
841(a)(1) and (b)(1)(B): Distribution of 5 grams and more of
methamphetamine; 18 U.S.C. § 2: Aiding and Abetting; and
Count 7: 21 U.S.C. §§ 841 (a)(1) and (b)(1)(A):
Possession with intent to distribute 50 grams and more of
methamphetamine; 18 U.S.C. § 2: Aiding and Abetting.
(Docs. 151 at 2; 152.)
to the Plea Agreement, Defendant was held responsible for 1,
161.6 net grams of methamphetamine. (See Docs. 151
at 6; 173 at 2.) The parties agreed that Defendant was
eligible to receive a two-level reduction for acceptance of
personal responsibility pursuant to U.S.S.G. § 3E1.1(a),
a one-level reduction pursuant to U.S.S.G. § 3E1.1(b),
and a two-level increase as an organizer or leader pursuant
to U.S.S.G. § 3B1.1. (See Docs. 151 at 6; 173
at 2.) “When negotiating the plea agreement, both
parties believed that the defendant would ultimately end up
at an offense level of 35 and a criminal history category of
I, resulting in a sentencing guideline range of 168-210
months.” (Doc. 173 at 4.)
United States Probation Office prepared a Presentence Report
(PSR) in anticipation of Defendant's
sentencing hearing. In calculating Defendant's offense
level, the Probation Office added an additional two-level
increase pursuant to U.S.S.G. § 2D1.1(b)(5) based on the
fact that the methamphetamine was imported from Mexico.
(See Doc. 173 at 2; PSR at 18, ¶ 64.) Defendant
objected to the increase, arguing that it was not within the
contemplation of the parties when Defendant signed the Plea
Agreement, and regardless, there was no direct evidence that
the methamphetamine was imported. (Doc. 171 at 4-5.) The
Government contended that the two-level increase was simply
overlooked and that it could prove the methamphetamine was
imported from Mexico, but it agreed that the two-level
increase pursuant to U.S.S.G. § 2D1.1(b)(5) was not
within the contemplation of the parties when Defendant signed
the Plea Agreement. (Doc. 173 at 2-5.) The Government stated
that it would not object to the Court's determination
that a two-level variance was appropriate. (Id. at
Court sentenced Mr. Majalca-Aguilar to 168 months'
imprisonment on August 23, 2013, and entered Judgment on
August 28, 2013. (See Docs. 174; 175.) Mr.
Majalca-Aguilar's sentence was based on an offense level
of 37-but the Court granted a two point downward variance,
recognizing that the parties did not agree to the two-level
increase based on importation of the methamphetamine when
they signed the Plea Agreement. (See Doc. 278 at
2:20-4:18.) As the Court explained at sentencing, the
guideline range for an offense level 37 and criminal history
category I was 210-262 months. (Id. at 8:1-7.)
Applying the two-level variance to lower the offense level to
35 with criminal history category I, the guideline range was
168-210 months. (Id. at 10:24-11:2.) The Court
sentenced Mr. Majalca-Aguilar to the low end of the range,
168 months. (Id.)
Majalca-Aguilar filed a Motion for Reduction of Sentence
Pursuant to 18 U.S.C. § 3582(c)(2) on February 10, 2015,
based on Amendment 782 to the United States Sentencing
Guidelines. (Doc. 245.) On June 9, 2016, the Court dismissed
Mr. Gutierrez's Motion for lack of jurisdiction, because
“[u]nder the 2014 amendment Defendant's total
offense level remains unchanged at 35[, ]” and he was
“not eligible for a modification of his sentence under
18 U.S.C. §3582(c)(2).” (Doc. 265.) Defendant
appealed the Court's Order on June 22, 2016, and the
Tenth Circuit dismissed his appeal on February 13, 2017.
(Docs. 267; 280.) See also United States v.
Majalca-Aguilar, 677 F. App'x 491 (10th Cir. 2017).
Defendant now moves the Court to reconsider its order denying
his motion to reduce sentence. (Doc. 281.)
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)).
Majalca-Aguilar asserts that a modification is warranted
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. 281.) The Court
construes Defendant's Motion, therefore, as one brought
pursuant to 18 U.S.C. § 3582(c)(2).
Court begins by noting that Defendant's Motion is
untimely. See United States v. Randall, 666 F.3d
1238, 1240-41 (10th Cir. 2011). Moreover, the Court has
already found that Mr. Majalca-Aguilar is not eligible for a
reduction based on any of the factors enumerated in section
3582(c)(2). (See Doc. 265.) Even if his Motion were
timely, Defendant has offered no reason, nor can the Court
find one, that would give the Court cause to alter its
Tenth Circuit, in affirming the Court's earlier Order,
acknowledged that Defendant's “applicable
sentencing range was lowered by the Commission, decreasing
the range's minimum from 210 months to 168 months.”
Majalca-Aguilar, 677 F. App'x at 492. But as the
Tenth Circuit observed, “the statute does not stop
there. It goes on to add that a district court may modify a
defendant's original sentence only ‘if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.'” Id.
(quoting 18 U.S.C. § 3582(c)(1)(A)(ii)). “[T]he
relevant policy statement here, USSG § 1B 1.10(b)(2)(A),
expressly provides that (with one exception not relevant
here) a court ‘shall not' reduce a defendant's
sentence below the amended guidelines range.”