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