United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court on two motions filed by defendant
Jose Anibal Jacome-Leon: a “Motion to Request Reduction
of Sentence Based on Minor Role” (Dkt. 123) and a
“Motion to Compel Prosecutor to File Rule 35(b)
[Motion]” (Dkt. 125). For the reasons that follow, the
motions are denied.
was one of four individuals charged in a superseding
indictment. Dkt. 27. He was charged with conspiracy to
distribute more than 500 grams of a mixture containing
methamphetamine and with unlawful possession with intent to
distribute more than 500 grams of such a mixture. The
potential penalty for these offenses included a minimum term
of imprisonment of 10 years and a maximum term of life
imprisonment. See 21 U.S.C. § 841(a)(1) &
(b)(1)(A); 18 U.S.C. § 2.
subsequently waived indictment and pleaded guilty to an
information charging interstate travel in aid of
racketeering, in violation of 18 U.S.C. § 1952(a)(3).
That offense carried a maximum possible penalty of five years
imprisonment. As part of a plea agreement, the Government
agreed to recommend a sentence of 60 months. Dkt. 94.
Presentence Report (PSR) asserted that defendant was
responsible for 6.7 kilograms of actual methamphetamine,
resulting in an adjusted guideline offense level of 36, which
included a reduction for having played a minor role in the
offense. Dkt. 101 at ¶¶ 33, 37. He also received 3
levels off for acceptance of responsibility, resulting in a
total offense level of 33. With a criminal history category
of II, defendant would have been facing an advisory guideline
range of 151 to 188 months imprisonment, but because the
maximum statutory penalty for his offense was five years, the
advisory guideline became 60 months.
did not object to the PSR, but he did file a motion for a
downward variance, which argued that several factors
warranted a sentence below 60 months. Dkts. 98, 99. The
Government opposed the motion. Dkt. 118. The court adopted
the findings in the Presentence Report and, after weighing
the factors in 18 U.S.C. § 3553(a), imposed a sentence
of 60 months. Dkt. 120.
first motion argues “that he should have received a
reduction on his sentence based on his minor role in the
offense.” Dkt. 123 at 1. The court notes that
defendant's sentencing guideline in fact took into
account the minor role he played; it included a 2-level
reduction under USSG § 3B1.2. Dkt. 101 at ¶37. The
court took that fact into account at the time of sentencing.
At any rate, the court has no authority to alter the sentence
at this point. The motion does not argue that the sentence
was imposed in violation of the laws or constitution of the
United States, and it therefore does not seek relief under 28
U.S.C. § 2255. Section 3582(c) of Title 18 likewise
provides no avenue for relief, as none of the circumstances
that allow modification of a final sentence are present here.
“A district court does not have inherent authority to
modify a previously imposed sentence; it may only do so
pursuant to statutory authorization.” United States
v. Mendoza, 118 F.3d 707, 709 (10th Cir. 1997).
Defendant has cited no facts to authorize or justify an
alteration of his sentence.
second motion seeks to compel the Government to file a motion
for reduction of sentence under Rule 35(b). Dkt. 125. The
court may review the Government's refusal to file a Rule
35(b) motion only in three narrow circumstances: (1) if the
refusal violates an agreement with the Government; (2) if the
refusal was based on an unconstitutional motive such as
defendant's race or religion; or (3) in an egregious
case, where the prosecution “stubbornly refuses to file
a motion despite overwhelming evidence that the accused's
assistance has been so substantial as to cry out for
meaningful relief.” United States v.
Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999);
United States v. Brown, 2005 WL 3617908, *1 (D.
Kan., Dec. 13, 2005).
cites nothing to support review of the Government's
action. The plea agreement contained no promise by the
Government to file a motion for reduction. Dkt. 35. The
Government promised to recommend a sentence of 60 months,
which it in fact did. Nor does defendant cite any
unconstitutional motive for the Government's refusal to
ask for a reduction or allege any facts to support such a
claim. Finally, defendant does not cite “overwhelming
evidence” that his assistance to the Government was
substantial, let alone that it was so substantial “as
to cry out for meaningful relief.” He cites nothing
more than an allegation that he provided some information to
the Government. As the Supreme Court noted in Wade v.
United States, 504 U.S. 181, 187 (1992), “a
showing of assistance is a necessary condition for relief,
[but] it is not a sufficient one.” Defendant fails to
allege any facts to show that the Government's decision
was not based on a rational assessment of the information
provided and its value, or lack thereof, in the prosecution
IS THEREFORE ORDERED this 11th day of October, 2017,
that defendant's Motion to Reduce Sentence (Dkt. 123) and
Motion to Compel (Dkt. 125) are DENIED.