Ruiz-Gerardo v. USA
ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 8/14/2017.(All non-registered users served via U.S. Mail Service)(jjg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
CASE NO. 13CR983-LAB
ORDER DENYING MOTIONS FOR
REDUCTION OF SENTENCE
[Doc. Nos. 46 & 48]
In 2013, this Court sentenced Gabriel Ruiz-Gerardo to 70 months in custody after he
pled guilty to possessing11.89 kilograms of actual methamphetamine with the intent to
distribute it. Ruiz-Gerardo has now filed a motion to vacate his sentence under 22 U.S.C.
§ 2255 [Doc. 46] and a second motion to reduce his sentence under 18 U.S.C. § 3582
Beginning with the § 2255 motion, it comes more than a year after Ruiz-Gerardo’s
sentencing and is therefore late. See 22 U.S.C. § 2255(f). Ruiz-Gerrardo doesn’t argue that
any exception to the one year time bar applies, and none is apparent. Besides, Ruiz-Gerardo
waived his right to collaterally attack his sentence if the Court followed the plea agreement
he made with the Government, which the Court did. No relief is available under § 2255.
As far as Ruiz-Gerardo’s alternative motion to reduce his sentence under § 3582(c),
he is ineligible. Section 3582(c)(2) authorizes a court discretion to reduce a defendant’s
original sentence when the sentence is “based on” a guideline range that has subsequently
been lowered by an amendment to the Guidelines. After Ruiz-Gerardo was sentenced, the
U.S. Sentencing Commission approved Amendment 782 to the Guidelines, which lowered
the sentencing range for most drug offenses by 2 levels. The Commission also voted to
make the changes retroactive. But Amendment 782 doesn’t apply to Ruiz-Gerardo’s original
sentence since he admitted that he possessed for distribution more than 4.5 kilograms of
actual methamphetamine and Amendment 782 did not lower the Guidelines for such large
amounts of drugs.
In addition, in imposing the original sentence the Court granted a 4-level Fast Track
departure and a 17-month variance from the low end of Ruiz-Gerardo’s applicable Guideline
range. When those concessions are backed out of his amended Guideline range, as they
must be, see United States v. Aragon-Rodriguez, 624 Fed. Appx. 542, *3, 2015 U.S. App.
LEXIS 21377 (9th Cir. Nov. 19, 2015) (the only Chapter Five departure that counts in
calculating a defendant’s amended Guideline range under § 3582(c) is for substantial
assistance), the low end of the amended Guideline range remains higher than the sentence
that the Court originally imposed. A court may not reduce a sentence under 3582(c)(2)
unless the low end of the amended Guideline range is less than the sentence originally
imposed. Here it’s not.
In sum, Ruiz-Gerardo is not eligible to have his sentence reduced under either code
section he relies on. His motion is DENIED.
IT IS SO ORDERED.
DATED: August 14, 2017
HONORABLE LARRY ALAN BURNS
United States District Judge
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