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United States v. Acuna-Gonzalez

United States District Court, D. New Mexico

July 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MANUEL ACUNA-GONZALEZ, a/k/a Jose Felix Rosales-Perez, a/k/a Eduardo Mendoza; RAMIRO ROSALES-PEREZ; and APOLONIO ROSALES-VIZCARRA, Defendants.

          John 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

          John F. Robbenhaar Federal Public Defender Albuquerque, New Mexico Attorney for Defendant Ramiro Rosales-Perez

          Henry Edward de la Garza Albuquerque, New Mexico Attorney for Defendant Apolonio Rosales-Vizcarra

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL BACKGROUND

         On 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.

         The 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.”).[1] 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).

         After 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).

         PROCEDURAL BACKGROUND

         Acuna-Gonzalez moves the Court to reduce his sentence in light of Amendment 782. See Motion at 1.[2] 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.

         Motion ¶ 11, at 4.

         The 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.

         The 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.)).

         LAW REGARDING THE UNITED STATES SENTENCING GUIDELINES.

         Courts 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.

         1. Background Law on the Guidelines.

         In 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.

         Congress 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 offense;
(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 . . . .

         18 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.

         To 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).

         Although 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.).[3]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 261-62.

         The 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 90-91.

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 89.

         2. Calculating the Initial Sentencing Range.

         Courts in initial sentencing proceedings must adhere to a three-step sequence:

[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. § 3553(e).

United States v. Nolf, 30 F.Supp.3d 1200, 1222 (D.N.M. 2014)(Browning, J.).

         Attorneys 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.”).

         Appellate 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 added).

         In drug 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.”).

         This 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 ...

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