United States District Court, D. New Mexico
C. Anderson United States Attorney Elaine Y. Ramirez
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Plaintiff
Phillip G. Sapien Sapien Law, LLC Albuquerque, New Mexico
Attorney for Defendant Manuel Acuna-Gonzalez
F. Robbenhaar Federal Public Defender Albuquerque, New Mexico
Attorney for Defendant Ramiro Rosales-Perez
Edward de la Garza Albuquerque, New Mexico Attorney for
Defendant Apolonio Rosales-Vizcarra
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Pro Se
Defendant's Motion to Reduce or Modify His Sentence
Pursuant to 18 U.S.C. § 3582(c)(2) and the United States
Guideline “Retroactive” Amendment 782, filed
March 7, 2016 (Doc. 123)(“Motion”). The primary
issue is whether a retroactively applicable amendment to the
United States Sentencing Guidelines that reduces Defendant
Manuel Acuna-Gonzalez' base offense level from 32 to 30
means that the Court should reduce Acuna-Gonzalez'
sentence. The Court will not reduce Acuna-Gonzalez'
sentence, because the sentence that Acuna-Gonzalez originally
received -- 108 months imprisonment -- is at the bottom of
Acuna-Gonzalez' amended Guidelines range.
December 13, 2011, a federal grand jury returned an
indictment charging Acuna-Gonzalez with “unlawfully,
knowingly and intentionally possess[ing] with intent to
distribute a controlled substance, 100 grams and more of a
mixture and substance containing a detectable amount of
heroin.” Indictment at 2, filed December 13, 2011 (Doc.
23). Acuna-Gonzalez agreed to plead guilty to that charge.
See Plea Agreement ¶ 3, at 2, filed May 22,
2012 (Doc. 43). As part of that agreement, the United States
and Acuna-Gonzalez stipulated that Acuna-Gonzalez “was
not a leader, organizer, manager or supervisor, pursuant to
U.S.S.G. § 3B1.1(a)-(c).” Plea Agreement ¶
9(b), at 5.
Court accepted the plea agreement, but it did not accept the
United States' and Acuna-Gonzalez' stipulation.
See Transcript of Sentencing Proceedings at
12:19-13:22 (held February 21,
2013)(Court)(“Tr.”). See also Plea
Agreement ¶ 10, at 7 (“The Defendant understands
that the above stipulations are not binding on the Court and
that whether the Court accepts these stipulations is a matter
solely within the discretion of the Court after it has
reviewed the presentence report.”). Instead, the Court
applied a two-level aggravating-role enhancement, so
Acuna-Gonzalez' Guidelines range was 135 to 168 months.
See United States Probation Office Memorandum at 1
(dated November 1, 2016), filed November 1, 2016 (Doc.
125)(“Memo”). Without that enhancement,
Acuna-Gonzalez' Guidelines range would have been 108 to
135 months. See United States' Motion for
Downward Variance and Sentencing Memorandum in Support
Thereof at 4, filed February 2, 2013 (Doc. 93)(“[W]hen
entering into the agreement, the parties contemplated a
sentencing range of 108-135 months.”). The Court did,
however, apply a downward variance “equivalent to two
offense levels . . . in part to match the expectations of the
parties.” Tr. at 13:3-18 (Court). Accordingly, the
Court sentenced Acuna-Gonzalez to 108 months imprisonment.
See Sentencing Minute Sheet at 1, filed February 21,
2013 (Doc. 98).
the Court sentenced Acuna-Gonzalez, the United States
Sentencing Commission adopted Amendment 782, which altered
U.S.S.G. §§ 2D1.1, 2D1.11. See U.S.S.G.
Supp. to App. C at 63, 67 (2016)(“Amendment
782”). Amendment 782 reduces Acuna-Gonzalez' base
offense level by two. See Amendment 782 at 64.
See also Memo at 1. The United States Sentencing
Commission made Amendment 782 retroactively applicable.
See U.S.S.G. § 1B1.10(d).
moves the Court to reduce his sentence in light of Amendment
782. See Motion at 1. Acuna-Gonzalez calculates his new
Guidelines range as 87 to 108 months and asks the Court to
sentence him to 87 months imprisonment. See Motion
¶¶ 10, 12, at 3-4. Acuna-Gonzalez argues that the
Court can reduce his sentence under 18 U.S.C. §
3582(c)(2), because the Court sentenced him based on a
guidelines range that Amendment 782 now reduces. See
Motion ¶¶ 8-10, at 3-4. He also argues that the
Court should reduce his sentence, because the factors that 18
U.S.C. § 3553(a) enumerates indicate that a shorter
sentence is appropriate. See Motion ¶ 11, at 4.
For purposes of § 3553(a), Defendant further advances
the Court that he has already served more than 54 months of
the sentenced impose[d] upon him in 2013, and he has
maintained employment while incarcerated, and will not be a
potential dangerous to society upon release, because he will
be deported to his country of origin and is determined not to
attempt to return to this country again. Lastly, that even
with the reduction of sentence the court may grant herein, he
still will serve an approximate [term] ¶ 22 month[s]
imprisonment, that with the 54 months he has already served,
sound as an adequate deterrent and punishment for the crime
he committed and accepted responsibility for.
¶ 11, at 4.
United States Probation Office (“USPO”) filed the
Memo to address Acuna-Gonzalez' arguments. See
Memo at 1. According to the USPO, the Court's original
downward variance means that Acuna-Gonzalez' current
sentence -- 108 months -- is equal to the bottom of his
amended Guidelines range of 108 to 135 months. See
Memo at 1. It follows, again according to the USPO, that
Acuna-Gonzalez is not eligible for a sentence reduction.
See Memo at 1.
United States responds to the Motion. See United
States' Reply to USPO Memorandum and Response to Motion
for Reduced Sentence, filed January 22, 2018 (Doc.
126)(“Response”). In the Response, the United
States “adopts the reasoning and conclusion of the
United States Probation Office memorandum dated November 1,
2016.” Response at 1. The United States contends that
“[a] defendant is not eligible for a sentencing
reduction if he earlier received a sentence that was at or
below the bottom of the newly-amended guideline range, other
than due to substantial assistance, which does not apply in
this case.” Response at 2 (citing United States v.
Boyd, 721 F.3d 1259, 1264 (10th Cir. 2013)(Hartz, J.)).
REGARDING THE UNITED STATES SENTENCING
applying the Guidelines must proceed by: (i) carefully
calculating the correct Guidelines range; (ii) making
Guidelines-contemplated departures under parts 5H and 5K; and
(iii) varying from the resulting Guidelines range based on
the factors listed at § 3553(a). Each of these steps
involves complex rules that must be applied with precision.
For clarity, the Court sets out those rules below.
Background Law on the Guidelines.
United States v. Booker, 543 U.S. 220
(2005)(Stevens, J.), the Supreme Court of the United States
of America severed the mandatory provisions from the
Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.
1837, thus making the Guidelines sentencing ranges
effectively advisory. See 543 U.S. at 245. In
excising the two sections, the Supreme Court left the
remainder of the Act intact, including 18 U.S.C. § 3553:
“Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing. Those factors in turn
will guide appellate courts, as they have in the past, in
determining whether a sentence is unreasonable.” 543
U.S. at 261.
has directed sentencing courts to impose a sentence
“sufficient, but not greater than necessary” to
comply with four statutorily defined purposes enumerated in
18 U.S.C. § 3553(a)(2):
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner . . . .
U.S.C. § 3553(a)(2)(A)-(D). Section 3551 provides that
a defendant who has been found guilty of an offense described
in any Federal statute . . . shall be sentenced in accordance
with the provisions of this chapter so as to achieve the
purposes set forth in subparagraphs (A) through (D) of
section 3553(a)(2) to the extent that they are applicable in
light of all the circumstances of the case.
18 U.S.C. § 3551.
achieve these purposes, 18 U.S.C. § 3553(a) directs
sentencing courts to consider: (i) the Guidelines; (ii) the
offense's nature and the defendant's character; (iii)
the available sentences; (iv) the policy favoring sentencing
uniformity for defendants who commit similar crimes; and (v)
the need to provide restitution to victims. See 18
U.S.C. § 3553(a)(1), (3)-(7).
the Guidelines ranges are no longer mandatory, both the
Supreme Court and the United States Court of Appeals for the
Tenth Circuit have clarified that the Guidelines are one of
several factors enumerated in 18 U.S.C. § 3553(a) and
that they are entitled to considerable deference. See
Rita v. United States, 551 U.S. 338, 349 (2007)(Breyer,
J.)(“The Guidelines as written reflect the fact that
the Sentencing Commission examined tens of thousands of
sentences and worked with the help of many others in the law
enforcement community over a long period of time in an effort
to fulfill [its] statutory mandate.”); United
States v. Cage, 451 F.3d 585, 593 (10th Cir.
2006)(Tymkovich, J.)(describing the Guidelines as “not
just one factor among many”), overruled on other
grounds by Gall v. United States, 552 U.S. 38
(2007)(Stevens, J.), as recognized in United States v.
White, 265 Fed.Appx. 719, 728 n.8 (10th Cir.
2008)(Anderson, J.).They are significant, because “the
Guidelines are an expression of popular political will about
sentencing that is entitled to due consideration . . . [and]
represent at this point eighteen years' worth of careful
consideration of the proper sentence for federal
offenses.” United States v. Cage, 451 F.3d at
593 (internal quotation marks omitted). A reasonable sentence
is one that also “avoid[s] unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. §
3553(a)(6). See United States v. Booker, 543 U.S. at
Tenth Circuit has “joined a number of other circuits in
holding that a sentence within the applicable Guidelines
range is presumptively reasonable.” United States
v. Terrell, 445 F.3d 1261, 1264 (10th Cir.
2006)(Krieger, J.), overruled on other grounds by Rita v.
United States, 551 U.S. 338, 349 (2007), as
recognized in United States v. Zamora-Solorzano, 528
F.3d 1247, 1251 n.3 (10th Cir. 2008)(Tacha, J.). This
presumption, however, is an appellate presumption, and not
one that the trial court can or should apply. See Rita v.
United States, 551 U.S. at 351; Gall v. United
States, 552 U.S. at 46-47; Kimbrough v. United
States, 552 U.S. 85, 90-91 (2007)(Ginsburg, J.).
Instead, the trial court must undertake the § 3553(a)
balancing of factors without any presumption in favor of the
Guidelines sentence. See Rita v. United States, 551
U.S. at 351; Gall v. United States, 552 U.S. at
46-47; Kimbrough v. United States, 552 U.S. at
While the Supreme Court's decision in United States
v. Booker has given the sentencing court discretion that
it did not have earlier, the sentencing court's first
task remains to accurately and correctly determine the
advisory-guideline sentence. Thus, before the sentencing
court takes up a defendant's Booker arguments,
the sentencing court must first determine whether the
defendant is entitled to downward departures. The sentencing
court may, however, also use these same departure factors in
the Booker calculus, even if the court does not
grant a downward departure.
United States v. Apodaca-Leyva, No. CR 07-1479, 2008
WL 2229550, at *6 (D.N.M. Feb. 13, 2008)(Browning, J.). The
Supreme Court recognizes, however, that the sentencing judge
is “in a superior position to find facts and judge
their import under § 3553(a) in each particular
case.” Kimbrough v. United States, 552 U.S. at
Calculating the Initial Sentencing Range.
in initial sentencing proceedings must adhere to a three-step
[F]irst, determining the appropriate sentencing range on the
basis of Guidelines' chapters 2 through 4; next, applying
Guidelines-contemplated departures based on parts 5H and 5K;
and, only then, varying from the Guidelines framework on the
basis of the § 3553(a) factors taken as a whole. The
Court must follow this sequence, because: (i) the Guidelines
expressly provide for it, and courts must still consult the
Guidelines, even if they will subsequently vary from them in
the third step of the sequence; and (ii) adherence to this
sequence is the only way to give effect to 18 U.S.C. §
United States v. Nolf, 30 F.Supp.3d 1200, 1222
(D.N.M. 2014)(Browning, J.).
and courts often say that the Guidelines are advisory, but it
appears more appropriate to say that the Guidelines ranges
are advisory. See Gall v. United States, 522 U.S. at
46 (“As a result of our decision [in United States
v. Booker], the Guidelines are now advisory[.]”);
United States v. Leroy, 298 Fed.Appx. 711');">298 Fed.Appx. 711, 712 (10th
Cir. 2008)(Baldock, J.)(unpublished)(“[T]he Guidelines
are advisory, not mandatory.”); United States v.
Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)(Lucero,
J.)(“[T]he sentence ultimately imposed by the district
court was based on a correctly calculated Guidelines range, a
stated consideration of the § 3553(a) factors, and an
understanding that the Guidelines are advisory.”). The
Court must consider the Guidelines, see Gall v. United
States, 522 U.S. at 46 (“It is . . . clear that a
district judge must give serious consideration to the extent
of any departure from the Guidelines . . . .”), and
must accurately calculate the Guidelines range, see Gall
v. United States, 522 U.S. at 49 (“[A] district
court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.”).
courts expect district courts to first obtain the accurate
Guidelines' sentence range and circumscribe their
United States v. Booker-granted authority to
post-Guidelines analysis “variances.” See
Irizarry v. United States, 553 U.S. 708, 710-16
(2008)(Stevens, J.). A district court that attempts to vary
from U.S.S.G. § 1B1.1's basic sequence most likely
acts procedurally unreasonably. See Gall v. United
States, 552 U.S. at 51 (holding that a sentence is
procedurally reasonable if “the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence”)(emphasis
trafficking sentencing cases, courts calculate the initial
true Guidelines range using the Drug Quantity Table at
U.S.S.G. § 2D1.1(c). Note (B) to Drug Quantity Table
specifies that a court sentencing for an offense involving a
mixture of methamphetamine with another inert substance
should “use the offense level determined by the entire
weight of the mixture or substance, or the offense level
determined by the weight of the . . . methamphetamine
(actual), whichever is greater.” U.S.S.G.
§ 2D1.1(c) n. (B)(emphasis added). See United States
v. Davis, 599 Fed.Appx. 815');">599 Fed.Appx. 815, 817 (10th Cir.
2013)(Holloway, J.)(unpublished)(“The Guidelines
dictate that a defendant's advisory sentencing range for
methamphetamine distribution is to be calculated using
whichever drug weight -- actual or mixed -- would produce the
greater offense level.”).
decision was a deliberate move on the part of the Sentencing
Commission to “increase the offense level for
methamphetamine traffickers whose offenses involved purer
methamphetamine mixtures, ” because drug purity
“is probative of the defendant's role or position
in the chain of distribution.” United States v.
Baez Perez, 515 Fed.Appx. 866, 868 (11th Cir. 2013)(per
curiam)(quotations omitted)(unpublished). The difference can
result in significantly different sentences:
Under the Tables, one gram of actual methamphetamine is
equivalent to twenty kilograms of marijuana, and one gram of
methamphetamine mixture is equivalent to two kilograms of
marijuana. In other words, a ten-to-one ratio is employed in
calculating sentences for actual ...