United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Bernie Banuelos'
Emergency Motion to Reduce Sentence (Doc. 195). Defendant
seeks a sentence reduction under the First Step Act, Pub. L.
No. 115-391, 132 Stat. 5194. The United States opposes the
motion, arguing Defendant is attempting to take advantage of
other favorable developments in sentencing law. Having
carefully reviewed the record and applicable law, the Court
will deny the Motion.
2002, a jury convicted Defendant of a heroin-related charge
(21 U.S.C. §§ 841(a)(1) and (b)(1)(C)) and two
charges relating to the possession and distribution of 5
grams or more of crack-cocaine (21 U.S.C. §§
841(a)(1) and (b)(1)(B)). The Presentence Investigation
Report (PSR) reflects that agents purchased and/or seized 93
grams of crack-cocaine from Defendant. He did not object to
that figure, which the Court adopted. Defendant received a
base offense level of 32 for the quantity and type of drug
under the United States Sentencing Guidelines (U.S.S.G.).
Four levels were added for possession of a firearm (U.S.S.G.
§ 2D1.1) and Defendant's aggravating role (U.S.S.G.
§ 3B1.1(c)), resulting in a total offense level of 36.
With a criminal history category of VI, the corresponding
guideline range was 324 to 405 months imprisonment. The Court
sentenced Defendant to 240 months on the heroin offense and
324 months on each crack-cocaine offense, with the sentences
running concurrently. The convictions and sentences were
upheld on appeal.
2007, “the United States Sentencing Commission
promulgated Amendment 706, which is retroactive and generally
provides a two-level reduction in the base offense level for
crack cocaine offenses under § 2D1.1(c).” U.S.
v. Darton, 595 F.3d 1191, 1193 (10th Cir. 2010).
Defendant filed a motion to reduce his sentence under 18
U.S.C. § 3582(c)(2). By an Order entered June 24, 2009,
the Court concluded Defendant was eligible for a sentence
reduction and that the amended sentencing range was 262 to
327 months. The Court reduced his sentence to 262 months
imprisonment. The Court further determined that it lacked
authority to consider a below-guideline sentence when ruling
on an 18 U.S.C. § 3582(c)(2) motion. The Tenth Circuit
Court of Appeals again affirmed the decision.
filed the instant First Step Act Motion, through counsel, on
April 8, 2019. He urges the Court to disregard the PSR
finding and reduce his sentence as though he only possessed 5
grams of crack-cocaine (the conviction quantity). The United
States filed an opposition response on April 22, 2019, and
Defendant filed a reply on April 26, 2019. The parties agree
the Court can rule on the Motion without conducting a hearing
404(b) of the First Step Act of 2018 allows the Court to
“impose a reduced sentence as if sections 2 or 3 of the
Fair Sentencing Act of 2010 ... were in effect at the time
the covered offense was committed.” Pub. L. No.
115-391, 132 Stat. 5194. The Fair Sentencing Act reduced the
disparity in the treatment of crack-cocaine and powder
cocaine offenses. See Pub. L. No. 111- 220, 124
Stat. 2372. In particular, Congress modified the statutory
penalties for “A-Level, ” B-Level, ” and
“C-Level” crack-cocaine offenses under 21 U.S.C.
§ 841(b)(1). For A-Level offenses (i.e.,
offenses under § 841(b)(1)(A)), the
amount of crack-cocaine triggering a maximum life sentence
was increased from 50 grams to 280 grams. For B-Level
offenses (i.e., offenses under §
841(b)(1)(B)), the amount of crack-cocaine
triggering a 40-year maximum sentence was increased from 5
grams to 28 grams. Offenses involving less than 28 grams of
crack-cocaine are now C-Level offenses (§
841(b)(1)(C)) and carry a maximum sentence
of 20 years imprisonment. Id.
Defendant was convicted in 2003 of possessing 5 grams or more
of crack-cocaine under § 841(b)(1)(B), which was then a
B-Level offense. However, the Court found Defendant was
accountable for 93 grams of crack-cocaine based on the PSR,
which is still a B-Level offense. The only point in
contention, then, is whether the Court should disregard the
uncontested PSR finding and rely solely on the conviction
quantity. If the PSR finding remains intact, Defendant is not
eligible for a sentence reduction because 93 grams of
crack-cocaine triggers the same statutory penalty both before
and after the Fair Sentencing Act. Compare Pub. L.
No. 111-220, 124 Stat. 2372 with 21 U.S.C. §
841(b)(1)(B). If the Court disregards the PSR finding and
assumes Defendant only possessed 5 grams of crack-cocaine, he
may be eligible for resentencing as a C-Level offender,
reducing his current sentence from 262 months to the maximum
penalty of 240 months. See 21 U.S.C. §
841(b)(1)(C). Relief under the First Step Act is
discretionary, and Defendant would still need to demonstrate
a reduction is appropriate. See Pub. L. 115-391,
§ 404(c), 132 Stat. 5194, 5222.
argues the PSR finding is unlawful due to recent developments
in Supreme Court law, Apprendi v. New Jersey, 530
U.S. 466 (2000) and Alleyne v. U.S., 570 U.S. 99
(2013). Under Apprendi, “any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.” 530 U.S. at 490.
Alleyne expanded that holding to prohibit judicial
fact-findings that increase a mandatory minimum sentence. 570
U.S. 99. More recently, the Tenth Circuit clarified that
Alleyne requires juries to decide crack-cocaine
quantities using the “beyond-a-reasonable-doubt
standard.” U.S. v. Johnson, 878 F.3d 925, 929
(10th Cir. 2017). Based on these cases, Defendant contends
the Court must resentence him as a C-Level offender using the
conviction quantity (5 grams of crack-cocaine).
United States contends Defendant is attempting to take
advantage of other favorable changes in sentencing law beyond
the First Step and Fair Sentencing Acts. The United States
notes the PSR finding was lawful at the time of sentencing,
when Defendant essentially conceded he possessed 93 grams of
cocaine. According to the United States, the only
way to obtain relief in this case is through collateral
review and plenary sentencing under Apprendi and
Alleyne. However, the United States points out this
is not a habeas proceeding, and in any event,
Apprendi and Alleyne are not retroactively
applicable on collateral review. See U.S. v. Mora,
293 F.3d 1213 (10th Cir. 2002); In re Payne, 733
F.3d 1027 (10th Cir. 2013).
majority of courts agree that the First Step Act does not
authorize relief based on plenary resentencing issues.
See U.S. v. McKinney, 2019 WL 2053998, at *2 (D.
Kan. May 9, 2019) (collecting cases); U.S. v. Lewis,
2019 WL 1923047, at *23 (D.N.M. Apr. 30, 2019) (conducting
in-depth survey of the case law). Several courts have also
specifically rejected First Step motions that challenge PSR
quantity findings under Apprendi and
Alleyne. See, e.g., U.S. v. Glover, 2019 WL
1924706, at *7 (S.D. Fla. Apr. 11, 2019) (rejecting
defendant's request for a “full resentencing
hearing during which the Court must apply Apprendi);
U.S. v. Potts, 2019 WL 1059837, at *2 (S.D. Fla.
Mar. 6, 2019) (same); U.S. v. Blocker, 2019 WL
2051957 (N.D. Fla. Apr. 25, 2019) (same); cf U.S. v.
Lawson, 2019 WL 1959490, at *3 (N.D. Ohio May 2, 2019)
(“Nothing in the First Step Act anticipates a full
re-sentencing with application of laws … that have
changed since a defendant's original sentencing, other
than the retroactive application of … the Fair
Sentencing Act.”). As one court points out, all pre-2010
indictments tracked § 841(b)(1)(B), which only required
possession of 5 grams of crack-cocaine for a B-Level offense.
Blocker, 2019 WL 2051957, at *5. Thus, if PSR
findings were disregarded based on new Supreme Court law,
“every crack defendant sentenced before the Fair
Sentencing Act took effect would be eligible for a reduction,
” creating “an enormous disparity in the opposite
direction” between crack and powder cocaine offenders.
Id. See also U.S. v. Boulding, 2019 WL 2135494, at
*6 (W.D. Mich. May 16, 2019) (acknowledging crack offenders
could receive “unwarranted windfalls” if PSR
findings were disregarded under the First Step Act and
carefully considered the caselaw, the Court predicts the
Tenth Circuit would decline to grant First Step relief based
on Apprendi and Alleyne. “[A]
district court is authorized to modify a defendant's
sentence only in specified instances where Congress has
expressly granted the court jurisdiction to do so.”
U.S. v. Gay, 771 F.3d 681, 686 (10th Cir. 2014).
Here, jurisdiction stems from both the First Step Act and 18
U.S.C. § 3582(c)(1)(B), which permits the Court to
modify a sentence “to the extent otherwise expressly
permitted by statute.” The corollary section addressing
guideline changes is § 3582(c)(2). The Tenth Circuit has
repeatedly held that “Apprendi and Alleyne
claims are unavailable under § 3582(c)(2)” because
“they are collateral attacks on [the] conviction and
sentence.” U.S. v. Serrato, 646 Fed. App'x
680, 685 (10th Cir. 2016). See also U.S. v. Clayton,
92 Fed. App'x 703, 706 (10th Cir. 2004) (noting
Apprendi/Alleyne challenges must be raised in a 28
U.S.C. § 2255 habeas proceeding rather than a motion to
reduce sentence); U.S. v. Stevens, 723 Fed.
App'x 629, 631 (10th Cir. 2018) (same); U.S. v.
Herrera, 634 Fed. App'x 670, 672 (10th Cir. 2016);
is no reasonable basis to apply a different rule under the
First Step Act. Like a retroactive guideline change, the
statute provides a limited scope of review. Courts must
suspend reality and consider the defendant's
“sentence as if” 28 grams of crack-cocaine
triggered a B-level offense “at the time the [crime]
was committed.” Pub. L. No. 115-391, 132 Stat. 5194. If
the 28-gram minimum applied in 2003, Defendant's sentence
would not change; the Court found, based on then-applicable
law, that he was responsible for 93 grams of crack-cocaine.
Incorporating ancillary issues into the analysis - such as
the propriety of the PSR finding - would ...