United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, SENIOR U.S. DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion to
Reduce Sentence, filed on November 14, 2018. (Doc. 116.)
Having reviewed the Motion, the record, and the applicable
law, the Court finds the motion is not well-taken and should
December 5, 2013, pursuant to an 11(c)(1)(C) plea agreement,
Mr. Romero pled guilty to ten counts in connection with his
role in a drug trafficking organization, including: one count
of conspiracy to distribute more than 500 grams of a mixture
and substance containing a detectable amount of cocaine,
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);
five counts of distribution of cocaine, contrary to 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2;
three counts of felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e); and one count
of felon in possession of a firearm and ammunition in
violation of 18 U.S.C. §§ 922(g)(2) and 924(e).
(See Doc. 88; see also Docs. 59; 89; 110.)
The United States Probation Office drafted a Presentence
Report (PSR) and found that Mr. Romero's base
offense level was 26 and his total offense level was 31. (PSR
¶¶ 22, 34.)
Mr. Romero “was at least 18 years old at the time of
the instant offense of conviction[, ]” the offense was
“a felony that [was] either a crime of violence or a
controlled substance offense[, ]” and he “has . .
. two prior felony convictions of either a crime of violence
or a controlled substance offense, ” the Court found
that he was a “career offender” and, therefore,
faced a longer sentence. (See PSR ¶ 29.) On
February 11, 2015, the Court sentenced Mr. Romero to 131
months' imprisonment, followed by 3 years of supervised
release. (Docs. 103, 105.) Mr. Romero has not filed an appeal
or a prior motion for post-conviction relief. In a letter
filed on November 14, 2018, Mr. Romero asks the Court whether
the United States Supreme Court's decision in Hughes
v. United States, 138 S.Ct. 1765 (2018) or Amendment 782
has any impact on his sentence. (See Doc. 116.)
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)). Mr. Romero moves for a
reduction under the third provision.
782 to the United States Sentencing Guidelines went into
effect “on November 1, 2014, and applies
retroactively.” United States v. Goodwin, 635
Fed.Appx. 490, 493 (10th Cir. 2015). “The amendment
‘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) (quoting Goodwin, 635 Fed.Appx. at 493
(citing U.S.S.G., suppl. to app. C, amend. 782 (2014));
subsequent citation omitted). Mr. Romero is not eligible for
a reduced sentence under Amendment 782, however, 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. See United
States v. Washington, 655 Fed.Appx. 714, 716 (10th Cir.
Romero also asks the Court to consider whether he is eligible
for a reduction under Hughes, where “the
Supreme Court held that a defendant is not categorically
ineligible for Section 3582(c)(2) relief merely because he
entered into a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C).” United States v.
Madrid, No. 11-CR-2516-WJ, 2019 WL 184053, at *2 (D.N.M.
Jan. 14, 2019). “Under Hughes a defendant who
was sentenced under an 11(c)(1)(C) agreement may seek a
sentence correction if his sentence was ‘based on'
a sentencing guideline range that was subsequently reduced by
the Sentencing Commission.” Id. (citing
Hughes, 138 S.Ct. at 1775). “A sentence will
be ‘based on' a guidelines range ‘if the
range was a basis for the court's exercise of discretion
in imposing a sentence,' in that it was a foundation or
starting point for the district court's sentencing
calculation.” Id. (citing Hughes, 138
S.Ct. at 1775). The Court need not consider whether Mr.
Romero's sentence is eligible for reduction in light of
Hughes, however, because the Court based the
sentence on his career-offender status. See Id.
Consequently, Hughes does not provide a basis for
modification of his sentence under 18 U.S.C. §
3582(c)(2). See Id. (citing United States v.
Wallace, 742 Fed.Appx. 354, 358 (10th Cir. 2018)
(“holding that Amendment 782 and Hughes did
not affect sentencing if Court relied on sentencing range
based on a Defendant's career-offender status”)).
IS ORDERED that Defendant's Motion to Reduce