United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter is before the court on Arthur Martin Rodriguez's
Motion for Reduction of Sentence under 18 U.S.C. §
3582(c)(2). Doc. 84. In his Motion, Mr. Rodriguez asks the
court to reduce his sentence based on Amendment 782 to the
United States Sentencing Guidelines, which took effect on
November 1, 2014. Id. For reasons explained below,
the court denies Mr. Rodriguez's Motion for Reduction of
November 7, 2016, Mr. Rodriguez pleaded guilty to Count 1 of
an Indictment charging a violation of 18 U.S.C. §
1952(a)(3), interstate transportation in aid of racketeering.
Doc. 62 at 1. Before sentencing, the United States Probation
Office prepared a Presentence Investigation Report
(“PSR”) using the 2016 edition of the United
States Sentencing Commission Guidelines Manual (“the
Guidelines”). Doc. 67 at 8. The PSR calculated a total
offense level of 31 and found a criminal history category of
I. Id. at 8, 9. This combination yielded a
Guidelines' sentencing range of 108 to 135 months.
Id. at 13. But, the statutory maximum term of
imprisonment for violations of 18 U.S.C. § 1952(a)(3) is
five years. Id. Therefore, the PSR recommended a
term of imprisonment of 60 months. Id.
February 8, 2017, the court sentenced Mr. Rodriguez to 60
months' imprisonment. Doc. 71. Mr. Rodriguez appealed the
decision (Doc. 73), and the Tenth Circuit dismissed his
appeal (Doc. 83). On May 12, 2017, Mr. Rodriguez filed this
Motion for Reduction of Sentence. Doc. 84.
3582(c)(2) allows courts to modify a term of imprisonment
once it has been imposed “in the case of a defendant
who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission . . . consistent with applicable policy
statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2). The policy statement to which
§ 3582(c)(2) refers is the current version of §
1B1.10 of the Guidelines. See U.S.S.G. §
1B1.10. Section 1B1.10 allows a court to reduce a term of
imprisonment under § 3582(c) when the guideline range
applicable to the petitioner was lowered by one of the
specific amendments to the Guidelines listed in §
1B1.10(d). U.S.S.G § 1B1.10(a)(1).
Rodriguez contends the court may reduce his sentence under 18
U.S.C. § 3582(c)(2) because Amendment 782 applies and it
reduces his base offense level. Doc. 84. The United States
Sentencing Commission issued Amendment 782 in November 2014.
This provision reduced the offense levels of many drug
offenses under U.S.S.G. § 2D1.1. United States v.
Gutierrez, __ F.3d __, 2017 WL 2641063, at *2 (10th Cir.
June 20, 2017). The Commission “made Amendment 782
retroactive, and thus available as a potential basis for a
sentence reduction pursuant to § 3582(c)(2).”
Id.; see also U.S.S.G. supp. to app. C,
amend. 788, Reason for Amendment, at 86.
the Supreme Court's decision in Dillon v. United
States, 560 U.S. 817 (2010), the Tenth Circuit has held
that § 3582(c)(2) “prescribes a two-step inquiry
for determining whether a defendant is entitled to have his
originally-imposed sentence reduced: the first question, a
matter of law, is whether a sentence reduction is even
authorized; the second question, a matter of
discretion, is whether an authorized reduction is in fact
warranted.” United States v. White,
765 F.3d 1240, 1245 (10th Cir. 2014) (citing United
States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)).
Only the first step is at issue here.
Rodriguez cannot satisfy the first Dillon step.
Although Amendment 782 is listed in § 1B1.10(d), it does
not apply to Mr. Rodriguez's sentence. The court
sentenced Mr. Rodriguez under the 2016 Guidelines, which
included the revisions effected by Amendment
So, the court applied Amendment 782 when it sentenced Mr.
Rodriguez. Amendment 782 was not a “subsequent”
amendment to the Guidelines and thus the court cannot apply
it to lower Mr. Rodriguez's Guideline range.
the court did not sentence Mr. Rodriguez based on the
Guideline's suggested sentence. Under U.S.S.G. §
5G1.1(c)(1), the maximum sentence Mr. Rodriguez could have
received was governed by 18 U.S.C. § 1952(a)(3)-not the
Guidelines. “[A] district court is authorized to reduce
a sentence under § 3582(c)(2) only if the
defendant was originally ‘sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing
Commission.'” White, 765 F.3d at 1246
(first quoting 18 U.S.C. § 3582(c)(2); then citing
Dillon, 560 U.S. at 825-26). Mr. Rodriguez's
sentence was controlled by statute and not based on the
Guidelines. Thus, Amendment 782 does not apply to Mr.
Rodriguez's sentence for yet another reason.
Mr. Rodriguez does not satisfy the first Dillon
step, the court need not consider the second step. The court
thus denies Mr. Rodriguez's Motion for Reduction of
THEREFORE ORDERED THAT defendant Arthur Martin
Rodriguez's Motion for Reduction of ...