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United States of America v. Jose Ortiz-Vega

February 7, 2012

UNITED STATES OF AMERICA
PLAINTIFF,
v.
JOSE ORTIZ-VEGA, DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Defendant Jose Ortiz-Vega ("Defendant") brings this motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). Defendant asks the Court to reduce his sentencing guideline range from 97-121 months to 78-97 months pursuant to the most recent amendment to U.S. Sentencing Guidelines Manual § 2D1.1(c), which increased the quantity thresholds for base offense levels for the possession of crack cocaine. For the reasons that follow, the Court will deny Defendant's motion.

II. BACKGROUND

Defendant was indicted on January 13, 2004, on nine counts. Specifically, Defendant was indicted for one count of distribution of more than 5 grams of crack cocaine (Count One); one count of distribution of more than 50 grams of crack cocaine (Count Three); one count of possession of more than 50 grams of crack cocaine with the intent to distribute (Count Five); three counts of distribution or possession of crack cocaine within a school zone (Counts Two, Four, and Six); one count of possession of more than 500 grams of cocaine with intent to distribute (Count Seven); one count of possession of marijuana with intent to distribute (Count Eight); and one count of possession of a firearm in furtherance of a drug trafficking offense (Count Nine). Indictment, ECF No. 14.

On February 27, 2004, Defendant pled not-guilty to all nine counts. Then, on April 15, 2004, pursuant to a plea agreement with the Government, Defendant changed his plea to guilty on all nine counts. Under the Sentencing Guidelines in effect at the time of Defendant's sentencing, his guideline range on the drug offenses was 97-121 months. The drug offenses charged on Counts Three through Six carried a mandatory minimum penalty of 120 months. See 21 U.S.C. 841(b)(1)(A)(iii) (2006) (amended 2006, 2009, 2010). The gun offense carried a mandatory consecutive sentence of 60 months. 18 U.S.C. § 924(c)(1)(A)(I) (2006). Despite the mandatory minimum for the drug offenses, the Government admits that it mistakenly recommended a sentence within the guideline range of 97-121 months for the drug offenses. Gov.'s Br. in Resp. to Def.'s Mot. to Reduce Sentence 2, ECF No. 81 [hereinafter Gov.'s Br.]. It states that it should have recommended a guideline range of 120-121 months for the drug offenses, accounting for the mandatory minimum.*fn1 Id. On July 6, 2004, the Court sentenced Defendant to 108 months for the drug offenses and 60 months to run consecutive on the gun offense, for a total period of incarceration of 168 months.

On December 24, 2007, Defendant filed a pro se motion for a reduction of his sentence pursuant to § 3582(c)(2) and Guidelines Amendment 706, which reduced the base offense levels for most crack offenses. Mot. for an Order Granting a Sentence Reduction, Dec. 24, 2007, ECF No. 71; see Amend. 706, U.S. Sentencing Guidelines Manual App. C (2007) [hereinafter U.S.S.G.]. The Court appointed the Federal Public Defenders as counsel who agreed with the Government that Defendant was ineligible for the sentence reduction. The court denied the motion. See Order, June 10, 2008, ECF No. 79.

Currently before the Court is Defendant's second attempt to have the Court reduce his sentence pursuant to § 3582(c)(2), this time under Guidelines Amendment 750.*fn2 The Government opposes the motion.*fn3 The matter is now ripe for disposition.

III. DISCUSSION

A. Legal Standard Upon a defendant's motion, the Court may reduce a defendant's term of imprisonment when the Court has sentenced the defendant "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)(2) (2006). The Court must ensure that any reduction is "consistent with applicable policy statements issued by the Sentencing Commission." Id. The Court must also consider the factors set forth in 18 U.S.C. § 3553(a). Id.

In order to determine a defendant's eligibility for a sentencing reduction, the Third Circuit outlined a two-step approach. See United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009). First, the defendant must have been "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission; and second, the sentence reduction must be consistent with applicable policy statements issued by the Sentencing Commission." Id. If a defendant meets both steps of this inquiry, the Court then considers the § 3553(a) factors. Dillion v. United States, 130 S. Ct. 2683, 2691-92 (2010). Nonetheless, it is within the Court's discretion whether to grant a reduction in the term of imprisonment. See 18 U.S.C. § 3582(c)(2) ("[T]he court . . . may reduce the term of imprisonment." (emphasis added)).

B. Analysis The parties dispute whether Defendant meets either of Doe's requirements. In particular, the parties diverge on whether Defendant is eligible for a reduction at all because he was subject to a mandatory minimum sentence of 120 months.*fn4 With respect to this mandatory minimum, Defendant contends that because the Court did not impose this mandatory minimum sentence he is entitled to the retroactive effect of Amendment 750.*fn5 See Def.'s Supplemental Br. in Supp. of Mot. to Reduce Sentence 2, ECF No. 83 [hereinafter Def.'s Br.]. The Government argues that, regardless of what sentence Defendant received, he was still subject to the 120-month mandatory minimum sentence at the time of his sentencing and Amendment 750 did nothing to change that fact. Gov.'s Br. 6. Accordingly, the Government concludes that even if the Court were to go back in time and apply the now-amended Guidelines to Defendant's sentencing, the mandatory minimum sentence would not change and would "subsume and displace[]" the guideline range under Amendment 750. Id. at 8.

1. Doe Step One Under Doe, Defendant must first show that the Court sentenced him based on a subsequently amended Guidelines provision. In this case, although the Court sentenced Defendant pursuant to a now-amended Guidelines provision, he was also subject to a mandatory minimum. Defendant contends that he satisfies Doe step one because, despite the mandatory minimum, the Court applied the guideline range of 97-121 months when determining his sentence. The Government, on the other hand, argues that regardless of its own error in not providing the correct guideline range of 120-121 months, Defendant was still subject to the mandatory minimum. Thus, he is ineligible for a sentencing reduction under § 3582(c)(2). Though the parties do not discuss it in their briefs, their competing arguments center around interpreting the phrase "based on" under § 3582(c)(2). See 18 U.S.C. § 3582(c)(2) (allowing a reduction for a defendant "who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered"). Yet, the Court declines to resolve this issue here because, regardless, Defendant fails to show that a reduction of his sentence is consistent with the policy statement issued by the Sentencing Commission--Doe step two.*fn6

2. Doe Step Two Under Doe's second step, the Court assesses whether Defendant's reduced sentence would offend the policy statement provided by the Sentencing Commission. Pursuant to the policy statement, the Court first determines what guideline range would have applied had Amendment 750 been in effect on July 6, 2004, Defendant's sentencing date. U.S.S.G. ยง 1B1.10(b)(1). Here, the parties do not dispute that Amendment 750 would change Defendant's guideline range. The parties also do not dispute that Defendant was subject to a mandatory minimum sentence of 120 months and this mandatory minimum is unchanged for purposes of sentencing Defendant. Thus, as Defendant is still subject to the mandatory minimum, the change in his guideline range under Amendment 750 is irrelevant--a mandatory minimum sentence ...


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