United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
8, 2010, the Court sentenced defendant to 151 months in
prison based on a binding plea agreement under Rule
11(c)(1)(C), Fed. R. Crim. P. Judgment In A Criminal
Case (Doc. #873). On November 2, 2015, the Court
overruled defendant's motion to reduce his sentence under
18 U.S.C. § 3582(c)(2). Memorandum And Order
(Doc. #1121). The Tenth Circuit Court of Appeals affirmed.
See Order And Judgment (Doc. #1141) filed April 27,
2016. The United States Supreme Court recently held that
defendants who plead guilty under Rule 11(c)(1)(C) generally
are eligible for relief under Section 3582(c)(2). Hughes
v. United States, 138 S.Ct. 1765, 1778 (2018) (in
“usual case, ” court acceptance of 11(c)(1)(C)
agreement and sentence imposed pursuant to agreement are
“based on” defendant's Guidelines range).
After Hughes, the parties submitted an agreed order
on AO Form 247 and requested a reduced sentence of 135
months. At the Court's direction, defendant has filed a
brief related to the parties' request. See
defendant's Memorandum Explaining Sentence
Reduction (Doc. #1257) filed September 26, 2018. The
government has not filed any opposition to defendant's
memorandum. For reasons stated below, however, the Court
lacks jurisdiction to reduce defendant's sentence under
federal district court may modify a defendant's sentence
only where Congress has expressly authorized it to do so.
See 18 U.S.C. § 3582(c); United States v.
Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Section
3582(c)(2) permits the Court to reduce a sentence if
defendant has been sentenced to a term of imprisonment
“based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C.
994(o).” 18 U.S.C. § 3582(c). To obtain relief
under Section 3582(c)(2), defendant must overcome three
distinct hurdles: (1) under the statute's “based
on” clause, defendant must show he was sentenced based
on a Guidelines range that the Sentencing Commission lowered
after his sentencing; (2) under the statute's
“consistent with” clause, defendant must show
that his request for a sentence reduction is consistent with
the Commission's policy statements; and (3) defendant
must convince the district court to grant relief in light of
the sentencing factors found in Section 3553(a). United
States v. C.D., 848 F.3d 1286, 1289-90 (10th Cir. 2017).
Under Tenth Circuit precedent, the first hurdle is
jurisdictional. Id. at 1289.
proceedings on a Section 3582(c)(2) motion “do not
constitute a full resentencing.” United States
Sentencing Guidelines (“U.S.S.G.”) §
1B1.10(a)(3); see Dillon v. United States, 560 U.S.
817, 825-26 (2010) (statute's text, together with its
narrow scope, shows Congress intended to authorize only
limited adjustment to otherwise final sentence and not
plenary resentencing proceeding; court does not impose new
sentence in usual sense, but merely reduces otherwise final
sentence in certain limited circumstances). In determining
whether and to what extent a reduction is warranted under
Section 3582(c)(2), the Court determines the amended
guideline range that would have applied if the retroactive
amendment had been in effect when defendant was originally
sentenced. U.S.S.G. § 1B1.10(b)(1). In doing so, the
Court substitutes only the retroactive amendments listed in
Section 1B1.10(d) for the corresponding Guidelines provisions
that were applied when defendant was sentenced and
“shall leave all other guideline application decisions
unaffected.” Id.; see Freeman v. United
States, 564 U.S. 522, 531 (2011) (plurality opinion)
(all Guidelines decisions from original sentencing remain in
place, except sentencing range that retroactive amendment
altered). Accordingly, the Court cannot recalculate aspects
of a sentence that the retroactive amendment did not impact.
United States v. Battle, 706 F.3d 1313, 1317 (10th
Cir. 2013); see Dillon, 560 U.S. at 831 (Section
3582(c)(2) proceedings do not permit challenges to aspects of
sentence not affected by Commission amendment to §
782 to the Sentencing Guidelines lowered the base offense
levels for certain quantities in the Drug Quantity Table at
Section 2D1.1. The Court originally found that defendant was
not eligible for relief under Amendment 782 because his
sentence was based on the binding plea agreement under Rule
11(c)(1)(C), not his Guidelines range. See Memorandum And
Order (Doc. #1121) at 1 (citing United States v.
Graham, 704 F.3d 1275, 1278 (10th Cir. 2013)). Even
after Hughes, supra, however, defendant is
not eligible for relief because he was not sentenced based on
a Guidelines range that the Sentencing Commission lowered. As
explained below, Amendment 782 does not lower defendant's
base offense level of 38.
the Sentencing Guidelines, the Court generally calculates
both the quantity of the mixture of methamphetamine and the
quantity of methamphetamine (actual), and uses whatever
corresponding offense level is greater. See U.S.S.G.
§ 2B1.1, Note B to the Drug Quantity Table (in case of
mixture or substance containing PCP, amphetamine or
methamphetamine, use offense level determined by entire
weight of mixture or substance, or offense level determined
by weight of PCP (actual), amphetamine (actual) or
methamphetamine (actual), whichever is greater). The 2009
Guidelines, which the Court applied at sentencing,
established an offense level 38 for “15 KG or more of
Methamphetamine, or 1.5 KG or more of Methamphetamine
(actual), or 1.5 KG or more of “Ice.” U.S.S.G.
§ 2D1.1(c)(1) (Nov. 1, 2009). At sentencing, the Court
assessed a base offense level 38 because the “quantity
of methamphetamine attributed to this conspiracy and
reasonably foreseeable to Javier Dozal exceeds 15 kilograms
of methamphetamine (1.5 kilograms of Methamphetamine
(actual)), resulting in a base offense level 38.”
Presentence Investigation Report (“PSR”)
(Doc. #857) ¶ 75. Amendment 782 raised the threshold
quantity to trigger an offense level 38. The current
Guidelines establish an offense level 38 for “45 KG or
more of Methamphetamine, or 4.5 KG or more of Methamphetamine
(actual), or 4.5 KG or more of “Ice.” U.S.S.G.
§ 2D1.1(c)(1) (Nov. 1, 2018).
original sentencing, the Court did not need to make a
specific finding of quantity of the methamphetamine mixture
or methamphetamine (actual) beyond the threshold quantities
to qualify for the highest base offense level of 38.
See PSR (Doc. #857) ¶ 75 (finding drug quantity
exceeded “15 kilograms of methamphetamine (1.5
kilograms of methamphetamine (actual))”). In this
proceeding under Section 3582(c)(2), however, the Court is
not bound to find exactly the original threshold
quantities of 15 kilograms of methamphetamine or 1.5
kilograms of methamphetamine (actual). See Battle,
706 F.3d at 1319. To determine the amended guideline range
that would have applied under Amendment 782, the Court may
look to its previous findings, including any portion of the
presentence investigation report adopted at sentencing, to
make supplemental calculations of drug quantity.
Id.; see United States v. Bruner, 513
Fed.Appx. 779, 786 (10th Cir. 2013) (district court has
authority to make supplemental drug-quantity calculation);
United States v. Valdez, 320 Fed.Appx. 863, 866
(10th Cir. 2009) (in § 3582(c)(2) proceeding, court may
rely on facts in PSR adopted at original sentencing).
summarized the quantity of drugs as follows:
64. Various quantities of methamphetamine were seized
throughout this investigation; some of the seizures were the
result of traffic stops, and others were the result of
consent searches and/or search warrants. At one residence,
the methamphetamine exhibits seized were determined to be
nearly 100% pure (Exhibit 17, 1, 792 net grams at 98.3%
purity; Exhibit 18.01, 214.9 net grams at 98.7% purity; and
Exhibit 18.03, 6.1 net grams at 92.6% purity). Other seizures
ranged in purity from 11.9% to 56.9%. The average purity of
all the methamphetamine seized was 46.05%.
65. In paragraphs 43-44, Naranjo discusses the drug debt she
owes to Javier Dozal for prior drugs which he supplied to
66. In paragraph 46, Javier Dozal tells Naranjo that he is
sending his brother to her to provide her with “the set
of sheets” (ounces of crystal methamphetamine).
67. In paragraph 57, Javier Dozal tells Nino he had
“two exact little carpets” (two ounces of crystal
68. In paragraph 58, Javier Dozal tells Nino he has the
“seven dwarfs kind” (kilograms of cocaine) and
the “kind that I work” (unknown ounces of crystal
69. In paragraph 59, Javier Dozal tells Nino he needed to
“get rid of two or 3” (2-3 ounces of ...