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United States v. Fernandez

United States District Court, D. Kansas

July 12, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
THOMAS J. FERNANDEZ, Defendant.

          MEMORANDUM AND ORDER

          HONORABLE J. THOMAS MARTEN, UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the court on defendant's pro se Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to United States Sentencing Guideline § 1B1.10 (Dkt. 201). Defendant is not eligible to receive the requested reduction.

         I. Procedural History

         Defendant pled guilty to conspiracy to distribute controlled substances (cocaine, marijuana, and methamphetamine) in violation of 21 U.S.C. § 846, with reference to section 841(a) and 18 U.S.C. § 2. The statutory maximum sentence for that offense was not more than 20 years imprisonment (240 months), a $1, 000, 000 fine, at least three years of supervised release, and a $100 mandatory special assessment. Defendant submitted a Plea Agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) (Dkt. 89), which proposed a sentence of 15 years in prison (180 months) followed by three years of supervised release, no fine, and the $100 mandatory assessment. Defendant was sentenced on April 9, 2009 pursuant to the plea, which resulted in a sentence that was 60 months below the statutory maximum. (Dkt. 108).

         Defendant did not appeal his conviction or sentence, although he filed a Motion to Vacate his sentence under 28 U.S.C. § 2255 on April 15, 2010 (Dkt. 142) that was denied on April 21, 2011 (Dkt. 162). Defendant then appealed the court's denial of his Motion to Vacate, which was dismissed on August 23, 2011. (Dkt. 171). Defendant filed a successive Motion to Vacate on September 28, 2017 (Dkt. 194), which was dismissed on December 21, 2017. (Dkt. 200). Defendant now seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), contending that the United States Supreme Court decision in Hughes v. United States entitles him to relief.

         II. Analysis

         18 U.S.C. § 3582(c)(2) allows a district court, in some cases, to modify a term of imprisonment “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Hughes v. United States held that section 3582(c)(2) applies even in cases where the defendant has entered an 11(c)(1)(C) plea agreement when the agreement is “based on” the defendant's Guidelines range. __ U.S. __, 138 S.Ct. 1765, 1775 (2018). “[A] sentence imposed pursuant to a Type-C agreement is ‘based on' the defendant's Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.” Id.

         The Hughes Court noted that “[i]n the typical sentencing case there will be no question that the defendant's Guidelines range was a basis for his sentence.” Id. Nevertheless, the Court recognized that there are cases in which the Guidelines range clearly did not form the basis of the sentence. The Court cites as an example Koons v. United States, in which it held the defendants' sentences were not based on subsequently lowered Guidelines ranges because the Guidelines and record made clear the sentencing judge disregarded the Guidelines range in favor of mandatory minimums and substantial assistance factors. Hughes, 138 S.Ct. at 1776 (citing Koons, __ U.S. __, 138 S.Ct. 1783, 1788-89 (2018)).

         The court finds this case to be analogous to Koons, in that the Guidelines range did not play a relevant part in the framework the court used to impose the sentence. The Plea Agreement itself indicates that because it was offered under Fed. R. Crim. P. 11(c)(1)(C), the parties did not seek application of the advisory sentencing guidelines. (See Dkt. 89, p. 3) (stating “The parties are of the belief that the proposed sentence does not offend the advisory sentencing guidelines, but because this proposed sentence is sought pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting the imposition of an advisory guideline sentence”) (emphasis added). During the plea hearing, Judge Wesley E. Brown asked defendant's counsel to review and summarize with defendant the important parts of the plea agreement:

Ms. Morgan: Mr. Fernandez, you understand that as part of your plea agreement that you are pleading guilty to Count 1 of the superseding indictment?
The Defendant: Yes.
Ms. Morgan: And that in exchange for your plea of guilty to the superseding indictment, the Government will dismiss the original indictment as well as the second superseding indictment?
The Defendant: Yeah.
Ms. Morgan: Okay. Other considerations for this is (sic) that the parties have agreed to a 15-year ...

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