United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
The court has before it Chester J. Goudeau's Motion to Reduce Sentence (Dkt. 56). The court denies the motion for the following reasons.
On September 19, 2006, the defendant was indicted and charged with: count 1 - possession with the intent to distribute approximately 232.2 grams of crack cocaine, in violation of 21 U.S.C. § 841(a) and (b)(1)(A); count 2 - possession with the intent to distribute approximately 240.4 grams of cocaine, in violation of 21 U.S.C. § 841(a) and (b)(1)(c); count 3 - possession of a handgun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and count 4 - possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Dkt. 1. On January 29, 2007, pursuant to a plea agreement, the defendant entered a guilty plea to count 1 of the indictment. The plea agreement contains the following language:
Waiver of Appeal and Collateral Attack. If the Court agrees to the proposed plea agreement, the defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence. The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change his sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C. § 3582(c)(2) and a motion brought under Fed. Rule of Civ. Pro 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case unless the sentence imposed is greater than 216 months. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received as authorized by Title 18, U.S.C. § 3742(a).
Dkt. 14 at ¶ 9 (emphasis added).
Prior to pleading guilty, the defendant presented to the court a petition to enter plea of guilty and swore in open court that he made his plea: (1) as a result of the plea agreement; (2) freely and voluntarily; and (3) with a full understanding of all matters related thereto. Dkt. 15. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(c), the government and defendant jointly proposed a sentence of 216 months. Dkt. 14 at ¶ 3.
The U.S. Probation Office prepared a presentence investigation report reflecting a base offense level of thirty-four, a two-level increase for possession of a firearm, and a three-level reduction for acceptance of responsibility, resulting in an adjusted offense level of thirty-three. See Dkt. 48. A total offense level of thirty-three with a criminal history category of three resulted in a 168 to 210 month advisory Guidelines range. Id. On April 25, 2007, the court sentenced the defendant to 192 months (sixteen years) in prison and five years of supervised release, based on updated recommendations from the government and defense counsel. The defendant did not file a direct appeal.
On May 5, 2008, the defendant filed an amended motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), based on the U.S. Sentencing Commission's Amendment 706, which reduced the base offense levels for crack cocaine offenses by two levels. Dkt. 26. After this court denied the motion on January 15, 2009, Goudeau appealed. The U.S. Court of Appeals for the Tenth Circuit remanded the case with instructions to dismiss the motion for lack of jurisdiction because Goudeau's sentence had been imposed as a result of a binding plea agreement under Rule 11(c)(1)(C) rather than a determination by the court based on a sentencing range . See United States v. Goudeau, 341 F.Appx. 400, 402-03 (10th Cir. 2009) (citing United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996)). This court complied with the Tenth Circuit's order and dismissed Goudeau's motion on September 15, 2009. Dkt. 44.
On December 2, 2009, Goudeau filed another motion for reduction of sentence pursuant to § 3582(c)(2), seeking the same relief as before. Dkt. 45. Goudeau essentially renewed his motion based on an intervening change in law coming from a case where the Tenth Circuit held that a "district court has authority to reduce sentences imposed pursuant to Rule 11 pleas where... the sentence was based at least in part on the then-applicable sentencing range." See United States v. Cobb, 584 F.3d 979, 985 (10th Cir. 2009) (emphasis added), reh'g en banc granted, 595 F.3d 1202 (10th Cir.), reh'g en banc vacated and judgment reinstated, 603 F.3d 1201 (10th Cir. 2010). Goudeau argued that he was in the same position as the defendant in Cobb, giving the district court jurisdiction to hear his motion.
This court found that Goudeau's sentence was at least partially based on the Guidelines, so it had jurisdiction over his motion. The court denied the motion, explaining that Goudeau's plea agreement waived the right to attack his sentence in a § 3582(c)(2) motion. Dkt. 48. After reviewing the record of Goudeau's guilty plea and his petition to enter a guilty plea, the court concluded that Goudeau's "guilty plea and his agreement to waive appeal of the conviction and sentence were made knowingly, freely and voluntarily." Id. at 4. The court explained that Goudeau had not set forth specific facts indicating that his counsel was ineffective in advising him of the effect of the proposed plea agreement and waiver. Id. Goudeau appealed the district court's denial of his motion.
On appeal, Goudeau argued for the first time that his waiver of his right to seek modification of his sentence under § 3582 was not knowingly and intelligently made due to the ineffective assistance of counsel. The Tenth Circuit declined to reach what it called a "late-blooming argument." Ultimately, the Tenth Circuit affirmed the district court's order denying Goudeau's motion.
On August 3, 2010, President Barack Obama signed into law the Fair Sentencing Act of 2010,  which reduced the sentencing disparities between crack and powder cocaine. "The Act amended the Controlled Substances Act and the Controlled Substances Import and Export Act by establishing new quantity thresholds that trigger statutory mandatory minimum and maximum penalties for cocaine based (crack cocaine') offenses." With Amendment 750, the U.S. Sentencing Commission amended the Guidelines to reflect the Act. The Commission unanimously voted to give retroactive effect to parts of the amendment. Relying on Amendment 750, Goudeau filed another motion seeking reduction of his sentence pursuant to § 3582(c)(2).
As the court held in its order on Goudeau's previous motion, Goudeau's prior sentence was partially based on the Guidelines, so the court has jurisdiction to hear the motion. Based on the U.S. Probation Office's presentence investigation report, Goudeau's Guideline range at sentencing was 168-210 months, and the ...