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United States v. Dozal

United States District Court, D. Kansas

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAVIER DOZAL, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         On June 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 Section 3582(c)(2).

         A 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.

         The 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 § 2D1.1).

         Amendment 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.

         Under 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).

         At the 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).

         The PSR 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 her.
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 methamphetamine).
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 methamphetamine).
69. In paragraph 59, Javier Dozal tells Nino he needed to “get rid of two or 3” (2-3 ounces of ...

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