United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN, UNITED STATES DISTRICT COURT
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.
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).
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
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.
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,
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
The Defendant: Yeah.
Ms. Morgan: Okay. Other considerations for this is (sic) that
the parties have agreed to a 15-year ...