George Bustamante v. United States of America

Filing 28

ORDER DENYING MOTIONS SEEKING RELIEF PURSUANT TO 18 U.S.C. 3582(c)(2) 1 . Petitioners Motion for Appointment of Counsel and Motion Requesting Evidentiary Hearing 13 , 14 are also DENIED by Judge Dean D. Pregerson. (Made JS-6. Case Terminated.) (lc). Modified on 9/25/2014 .(lc).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GEORGE BUSTAMANTE ) ) Petitioner, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ) ) ___________________________ ) Case No. CV 12-06002 DDP T [CR 09-00605 DDP-CT] ORDER DENYING MOTIONS SEEKING RELIEF PURSUANT TO 18 U.S.C. § 3582(c)(2) [CV Dkt. No. 1, 13, 14] [CR Dkt. Nos. 170, 189, 190, 234, 242] 17 18 Before the court are three motions filed by Petitioner George 19 Bustamante (“Petitioner”): (1) a Motion to Vacate, Set Aside or 20 Correct Sentence Pursuant to 28 U.S.C. 2255, filed by Petitioner 21 pro se (CV Dkt. No. 1; CR Dkt. No. 170); (2) a Motion to Reduce 22 Sentence Pursuant to 18 U.S.C. 3582(c)(2), filed with the 23 assistance of counsel (CR Dkt. No. 234); and (3) a Motion to Reduce 24 Sentence Pursuant to 18 U.S.C. 3582(c)(2), filed by Petitioner pro 25 se, which is virtually identical to second motion listed (CR Dkt. 26 No. 242). The motions are fully briefed and suitable for decision 27 without oral argument. Having considered the parties’ submissions, 28 the court adopts the following Order. 1 I. Background 2 A. Factual Background 3 On June 24, 2009, Petitioner was charged in a four-count 4 indictment with conspiracy to distribute at least 50 grams of crack 5 cocaine and at least 50 grams of methamphetamine (count one); 6 distributing 103.8 grams of cocaine (count two); distributing 14.9 7 grams of methamphetamine (count three) and distributing 49.7 grams 8 of methamphetamine (count four). (CR Dkt. No. 1.) 9 On March 10, 2010, Petitioner entered into a binding plea 10 agreement, which was made pursuant to Federal Rule of Criminal 11 Procedure 11(c)(1)(B). (Dkt. No. 85.) Under the agreement, 12 Petitioner agreed to plead guilty to count two of the indictment in 13 exchange for the government’s agreement to dismiss the remaining 14 counts of the indictment and to not prosecute Petitioner for 15 illegal possession of a firearm found at the time of his arrest. 16 (Id. ¶¶ 2, 21(b), 21(e).) The parties stipulated in the agreement 17 that the base offense level would be 30, with a total adjusted 18 offense level, after acceptance of responsibility, of 27. (Id. ¶ 19 15.) However, the parties did not stipulate or agree to 20 Petitioner’s criminal history score. (Id. ¶ 16.) The parties agreed 21 to recommend to the court a sentence of imprisonment of 120 months. 22 (Id. ¶ 21(d).) 23 On August 3, 2010, after Petitioner signed the plea agreement 24 but before it was presented for the court’s acceptance, the Fair 25 Sentencing Act of 2010 (“FSA”) was signed into law. Pub.L. No. 26 111–220; 124 Stat. 2372. The FSA raised the quantity of crack 27 cocaine necessary to trigger a five-year mandatory minimum sentence 28 from 5 to 28 grams and raised the quantity necessary to trigger a 2 1 ten-year mandatory minimum sentence from 50 to 280 grams. Pub.L. 2 No. 111–220 § 2(a) (amending 21 U.S.C. § 841(b)(1)). Subsequently, 3 on November 1, 2010, under emergency authority granted by the FSA, 4 the United States Sentencing Commission adopted Amendment 748, 5 which lowered the offense levels for crack cocaine offences as set 6 forth in the drug quantity table of Guidelines at § 2D1.1(c). 7 U.S.S.G. App. C, amend. 748 (Nov. 2010).1 8 9 In his sentencing position, filed by then-counsel Stephen G. Frye, Petitioner acknowledged that, as a result of the FSA and the 10 amendment to the Sentencing Guidelines, the applicable mandatory 11 minimum sentence for his crime had dropped from 10 to 5 years and 12 the new base offense level for 103.8 grams of crack dropped from 30 13 to 26. (See Def. Sentencing Br. (11/22/2010) at 2-4, 9-2) (attached 14 as Exhibit B to the government’s motion of 9/06/2012 (CV Dkt. No. 15 8).) Petitioner observed that he “certainly has a good faith basis 16 for moving to withdraw his plea agreement pursuant to Federal Rule 17 of Criminal Procedure 11(d)(2)(B) based on the FSA and revisions to 18 the sentencing guidelines for cocaine abase.” (Id. at 10.) 19 Nevertheless, Petitioner stated in his sentencing position 20 brief that he “does not seek to withdraw his plea and abides by the 21 plea agreement calculation of base offense 30 pursuant to the 22 former U.S.S.G. § 2D1.1(c)(7).” (Id.) See also, id. at 2 23 (Petitioner “is entitled to the benefit of his bargain”); id. at 4 24 (Petitioner “will abide by his bargain and agree to be sentenced to 25 26 27 28 1 Amendment 748 was subsequently made permanent by Amendment 750. U.S.S.G. App. C, amend. 750 (Nov. 2011). The changes were made retroactive by amendment 759. U.S.S.G.App. C, amend. 759 (Nov. 2011); U.S.S.G. § 1B1.10(c) (listing Part A of Amendment 750 as retroactive). 3 1 the 120 months as contemplated in his plea agreement”); id. at 10 2 (Petitioner “does not seek to withdraw his plea and abide by the 3 plea agreement); id. at 11 (Petitioner “will abide by his bargain 4 and agree to be sentenced to the 120 months as contemplated by his 5 plea agreement.”) 6 On December 13, 2010, the court accepted Petitioner's Rule 7 11(c)(1)(B) plea agreement and sentenced him to 120 months of 8 imprisonment. (CR Dkt. Nos. 159, 160.) 9 B. 10 Procedural Background On August 12, 2012, Petitioner filed a petition for writ of 11 habeas corpus pursuant to 28 U.S.C. § 2255. (CR Dkt. No. 170.) The 12 government moved to dismiss the motion on September 6, 2012. (CR 13 Dkt. No. 178.) On December 12, 2012, Petitioner filed a motion 14 asking the court to construe his initial motion as a petition for 15 relief under 18 U.S.C. § 3582(c)(2). (CR Dkt. No. 202.) Then, for 16 reasons that are not clear, on May 21, 2013, Petitioner asked the 17 court to disregard the December 12, 2012 motion and revert to 18 consideration of his initial § 2255 motion. (CR Dkt. No. 215.) The 19 court granted this request. (CR Dkt. No. 223.) 20 Perhaps appreciating that his § 2255 petition was time-barred, 21 as it was filed more than one year after he was sentenced, on March 22 31, 2014, Petitioner’s attorney, Brian A. Newman, filed on his 23 behalf a motion for a reduction of sentence pursuant to 24 § 3582(c)(2). (CR Dkt. No. 234.) On April 23, 2014, Petitioner 25 filed, pro se, an additional § 3582(c)(2) motion, which was nearly 26 identical to that filed by counsel. (CR Dkt. No. 242.) The 27 government moved to dismiss both motions, incorporating its 28 4 1 arguments against Petitioner’s original Section 2255 motion and 2 adding additional arguments. (Dkt. No. 245.) 3 Because the initial motion, (CR Dkt. No. 170), though labeled 4 a motion for relief under § 2255 motion, was in substance a motion 5 for relief under § 3582(c)(2), and because the motion would plainly 6 be time-barred if construed as a § 2255 motion, the court will 7 construe the motion as a request for relief under § 3582(c)(2). As 8 each of the motions seeks the same relief, the court will consider 9 all three of the motions as a single request for a reduced sentence 10 under § 3582(c)(2). 11 12 II. Legal Framework and Analysis 13 A. Petitioner’s Requests for Appointment of Counsel and an 14 Evidentiary Hearing 15 As a preliminary matter, Petitioner has submitted two 16 procedural motions requesting appointment of counsel and an 17 evidentiary hearing. 18 States magistrate judge or the court determines that the interests 19 of justice so require, representation may be provided for any 20 financially eligible person who . . . is seeking relief under 21 section 2241, 2254, or 2255 of title 28.” 22 However, because the Court construes Petitioner’s motions as a 23 single motion under 18 U.S.C. § 3582(c)(2), rather than a § 2255 24 habeas petition, and because in any event Petitioner has been 25 adequately represented by counsel in his second listed motion 26 (which is substantially identical to the third motion), the Court 27 denies the motion for appointment of counsel. 28 denies the request for an evidentiary hearing, because the issues (CV Dkt. Nos. 13 & 14.) 5 “Whenever the United 18 U.S.C. § 3006A. The Court likewise 1 presented in the motions are exclusively questions of law, 2 requiring no new evidence to decide. 3 4 5 B. Petitioner’s Requests for a Reduced Sentence Generally, district courts “may not modify a term of 6 imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). 7 However, an exception exists “in the case of a defendant who has 8 been sentenced to a term of imprisonment based on a sentencing 9 range that has subsequently been lowered by the Sentencing 10 Commission.” § 3582(c)(2) (emphasis added). In such cases, the 11 court may “reduce the term of imprisonment, after considering the 12 factors set forth in section 3553(a) to the extent that they are 13 applicable, if such a reduction is consistent with applicable 14 policy statements issued by the Sentencing Commission." Id. 15 Difficult issues may arise in the context of motions for a 16 reduction of sentence brought under § 3582(c)(2) where the 17 petitioner and the government present the court with a binding plea 18 agreement reached pursuant to Federal Rules of Criminal Procedure 19 11(c)(1) (a “(C) agreement") and the court accepts the agreement 20 and imposes the sentence recommended by the parties.2 “In such 21 cases, the question arises: Was the defendant's sentence based upon 22 a guideline range, or was his sentence based upon the terms of the 23 11(c)(1)(C) agreement? If the latter, then § 3582(c)(2) is 24 inapplicable and the court lacks authority to modify the prisoner's 25 sentence.” United States v. Mason, 2012 WL 2880846, at *1 (E.D. 26 27 28 2 Under (C) agreements, the court may only accept or reject the agreement; if it accepts the agreement, the court may only impose the sentenced the agreement calls for. Fed. R. Crim. P. 11(c)(1). 6 1 Wash. July 13, 2012) aff'd, 529 F. App'x 842 (9th Cir. 2013) cert. 2 denied, 134 S. Ct. 1333 (U.S. 2014). The controlling authority for 3 resolving the issue is Justice Sotomayor’s concurring opinion in 4 Freeman v. United States, 131 S. Ct. 2685, 2685-97 (2011) and the 5 Ninth Circuit’s interpretation of Freeman in United States v. 6 Austin, 676 F.3d 924 (9th Cir. 2012). 7 As a general matter, a district court lacks jurisdiction under 8 § 3582(c)(2) to modify a prison sentence that the court imposed 9 after accepting a (C) agreement. Austin, 676 F.3d at 928. However, 10 a court has authority to reduce such a sentence if either of two 11 exceptions set forth in Justice Sotomayor’s Freeman concurrence are 12 applicable. 13 “The first exception is when a (C) agreement itself ‘call[s] 14 for the defendant to be sentenced within a particular Guidelines 15 sentencing range,’ which the court then accepts.” Austin, 676 F.3d 16 at 928 (quoting Freeman, 131 S. Ct. at 2697 (Sotomayor, J., 17 concurring)). This exception is not applicable in the instant case 18 because, as in Austin, Petitioner’s “plea agreement contained a 19 specific term and makes no mention of a particular sentencing 20 range.” Id. agreement states only: “Defendant and the USAO agree 21 that an appropriate disposition of this case is that the Court 22 impose a sentence of 120 months imprisonment, five years of 23 supervised release (with conditions to be fixed by the Court) and a 24 $100 special assessment.” (CR Dkt. No. 85 at 17.) 25 The second exception exists where the “sentencing range is 26 evident from the agreement itself.” Austin, 676 F.3d at 928 27 (quoting Freeman, 131 S. Ct. at 2697-98 (Sotomayor, J., 28 7 1 concurring)). As Justice Sotomayor explained in her Freeman 2 concurrence: 3 [A] plea agreement might provide for a specific term of imprisonment—such as a number of months—but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under § 3582(c)(2) 4 5 6 7 8 9 10 Id. 11 In order to calculate the applicable sentencing range, it is 12 necessary to know (1) the defendant’s adjusted offense level, and 13 (2) the defendant’s criminal history category. See U.S.S.G. § 14 1B1.1. In her Freeman concurrence, Justice Sotomayor explained that 15 it was evident that the plea agreement at issue employed a 16 particular sentencing range in light of the defendant’s adjusted 17 offense level and anticipated criminal history category, both of 18 which were stated in the plea agreement. Freeman, 131 S. Ct. at 19 2699 (Sotomayor, J., concurring). Therefore, Justice Sotomayor 20 concluded, “Freeman's term of imprisonment is ‘based on’ a 21 Guidelines sentencing range” and the court thus had authority to 22 reduce his sentence. Id. at 2700. 23 By contrast, in Austin, the Ninth Circuit held that the 24 sentencing range was not evident from the plea agreement because 25 “the plea agreement does not contain any information about Austin's 26 criminal history category,” making a calculation of the applicable 27 sentencing range “impossible.” 676 F.3d at 929. Likewise, in Mason, 28 the court held that the applicable sentencing range was not evident 8 1 from the plea agreement because, although the defendant’s adjusted 2 offense level was stated in the agreement, the agreement did not 3 state the defendant’s criminal history category. Mason, 2012 WL 4 2880846, at *2. Accordingly, in both cases the courts concluded 5 that the sentence was not “based on” the applicable sentencing 6 range but rather on the plea agreement. Id.; Austin, 676 F.3d at 7 930. 8 In the present case, like Austin and Mason, and unlike 9 Freeman, the sentencing range is not “evident” from the agreement 10 itself. The first piece of information necessary to calculate the 11 sentencing range is present because the adjusted offence level is 12 set forth in the plea agreement. (See CR Dkt. No. 85 at 7.) 13 However, the second piece of necessary information is lacking, as 14 the plea agreement specifically states that “[t]here is no 15 agreement as to defendant’s criminal history or criminal history 16 category.” (CR Dkt. No. 85 at 7.) As a result, the sentencing range 17 is not evident from the plea agreement and the second exception set 18 forth in Justice Sotomayor’s Freeman concurrence is, accordingly, 19 inapplicable. 20 Petitioner makes no attempt in any of his filings to argue 21 that his agreement falls within either of the two Freeman 22 exceptions, even though the government addressed these issues at 23 length in opposing Petitioner’s various motions. Instead, 24 Petitioner’s second and third motions are devoted almost 25 exclusively to an inapposite argument that reduced mandatory 26 minimum sentences set by the FSA were in force at the time 27 Petitioner was sentenced. (See CR Dkt. Nos. 234 at 7-21 and 242 at 28 5-17.) This argument is unavailing because it does not matter 9 1 whether the lower mandatory minimums were in effect at the time of 2 Petitioner’s sentence if the sentence imposed was based on the (C) 3 agreement, as everything before the court indicates was the case. 4 It also bears noting, although Petitioner does not raise the 5 point, that it is irrelevant that the parties were likely aware of 6 Petitioner’s criminal history when they negotiated the plea 7 agreement. As Justice Sotomayor observed in Freeman, “the mere fact 8 that the parties to a (C) agreement may have considered the 9 Guidelines in the course of their negotiations does not empower the 10 court under § 3582(c)(2) to reduce the term of imprisonment they 11 ultimately agreed upon. . .” Freeman, 131 S. Ct. at 2697. This is 12 because “plea bargaining necessarily occurs in the shadow of the 13 sentencing scheme to which the defendant would otherwise be 14 subject.” Id. 15 Nor is it relevant that this court was aware of the 16 defendant’s criminal history and may have calculated Petitioner’s 17 sentencing range when it accepted the plea agreement. “Although the 18 agreement acknowledges the court's duty independently to consult 19 the Sentencing Guidelines, under Justice Sotomayor's approach, it 20 is the terms of the (C) agreement that dictate, not the judge's 21 separate calculations.” Austin, 676 F.3d at 924 (citing Freeman, 22 131 S.Ct. at 2696 (Sotomayor, J., concurring)). 23 In sum, the court concludes that, under the controlling 24 authority of Austin and Freeman, the sentence imposed on Petitioner 25 was “based on” the (C) plea agreement he signed and jointly with 26 the government presented to the court for its approval, rather than 27 on the “a sentencing range that has subsequently been lowered by 28 10 1 the Sentencing Commission,” § 3582(c)(2). As a result, Petitioner 2 is not entitled to a reduction of sentence under § 3582(c)(2). 3 4 5 III. Conclusion For the reasons stated herein, Petitioner’s Motion to Motion 6 to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. 2255 7 (CV Dkt. No. 1; CR Dkt. No. 170), Motion to Reduce Sentence 8 Pursuant to 18 U.S.C. 3582(c)(2) (CR Dkt. No. 234), Motion to 9 Reduce Sentence Pursuant to 18 U.S.C. 3582(c)(2) (CR Dkt. No. 242) 10 are DENIED. Petitioner’s Motion for Appointment of Counsel and 11 Motion Requesting Evidentiary Hearing (CV Dkt. Nos. 13 & 14; CR 12 Dkt. Nos. 189 & 190) are also DENIED. 13 14 15 IT IS SO ORDERED. 16 Dated: September 25, 2014 DEAN D. PREGERSON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 11

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